      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                                                     (71    •C•-ri r'
                                          )       No. 75901-9-1                             In,Fri
              v.                          )
                                          )       OPINION PUBLISHED IN PART; 727r
                                                                             ocn
TERRANCE JON IRBY,                        )
                                          )                                           Cll    —<
                                                                                              •-•
                     Appellant.           )
                                          )       FILED: April 16,2018
                                          )

       DWYER,J. — Terrance Irby appeals from the judgment entered on a jury's

verdicts finding him guilty of one count of murder in the first degree and one

count of burglary in the first degree. Irby contends that the trial court erred by

denying his motion to dismiss. This ruling was based on the trial court's finding

that Irby did not establish prejudice arising from the actions of jail guards who

opened and read written communications from Irby to Irby's lawyer. The trial

court erred, Irby asserts, because it reached this conclusion without presuming

that the constitutional violation was prejudicial and without holding the

prosecution to its burden to present evidence sufficient to prove, beyond a

reasonable doubt, that the presumption of prejudice was overcome and that the

violation did not prejudice him.
No. 75901-9-1/2


       We agree. Accordingly, we reverse the trial court's order denying Irby's

motion to dismiss and remand this matter for further proceedings)

                                                  I
        In April 2005, Irby was charged with one count of burglary in the second

degree, alleged to have occurred on March 6, 2005, and the following counts

alleged to have occurred on March 8,2005: one count of aggravated murder in

the first degree with an alternative allegation of first degree felony murder, one

count of burglary in the first degree, one count of robbery in the first degree,

three counts of unlawful possession of a firearm in the first degree, and one

count of attempting to elude a police vehicle. The latter charges arose out of the

robbery and bludgeoning death of James Rock.

        In January 2007, a jury found Irby guilty of murder in the first degree with

aggravating circumstances, felony murder in the first degree, and burglary in the

first degree. Four years later, the Washington Supreme Court reversed the

judgment of conviction and remanded the cause for a new trial in light of the

court's determination that Irby's due process rights had been violated during jury

selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796(2011).

        Irby's retrial was held in 2013. The State prosecuted the same charges

that were brought during the first trial and Irby was convicted as charged.

Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily

absented himself from the trial. We subsequently reversed the judgment of

conviction and remanded the cause for yet another new trial because the trial


        I In the unpublished portion of this opinion. Irby asserts additional claims that do not
warrant appellate relief.


                                                - 2-
No. 75901-9-1/3


judge had erroneously seated a juror who had demonstrated actual bias against

Irby during voir dire. See State v. Irby, 187 Wn. App. 183, 347 P.3d 1103(2015),

review denied, 184 Wn.2d 1036, 379P.3d 953(2016).

       In March 2016, pretrial proceedings began for Irby's third trial. Attorney

Jennifer Rancourt filed a notice of appearance on Irby's behalf. In mid-March,

the State filed an amended information charging Irby with one count of

premeditated murder in the first degree and one count of burglary in the first

degree. Two days later, Irby appeared in court and was arraigned on the

charges. He entered pleas of not guilty.

       In mid-March and again in late March, Irby requested to represent himself.

Following a colloquy with the trial court in mid-April, Irby's request was granted.

       Four months later, Irby filed a pro se motion to dismiss the charges

against him. In his motion, Irby alleged misconduct by jail guards, claiming that

(during the period of time during which Ms. Rancourt represented him)they had

Improperly opened outgoing mail containing privileged legal communication

intended for his attorney.

       The trial court denied Irby's motion. The trial court did determine that the

jail guards had violated Irby's right to counsel by opening and reading privileged

attorney-client communications. Although Irby argued that the trial court's

determination mandated that a presumption of prejudice be imposed, the trial

court placed on Irby the burden of proving prejudice and concluded that he did

not do so.




                                        - 3-
No. 75901-9-1/4


       One month later, Irby informed the trial court that he had decided not to

attend the trial and waived his right to be present at trial.

       After a jury was selected without Irby's participation, the evidentiary stage

of Irby's third trial began. Irby did not attend the trial. The State presented its

case in chief and gave closing argument. No defense or closing argument were

presented on Irby's behalf.

       The jury returned verdicts finding Irby guilty as charged.

       Irby was sentenced to concurrent terms of incarceration of 388 months for

the murder in the first degree conviction and 54 months for the burglary In the

first degree conviction.

                                             II

       Irby contends that the trial court erred in denying his CrR 8.3(b) motion to

dismiss.2 Irby's contention has merit

                                             A

       This matter involves an alleged deprivation of a defendant's Sixth

Amendment right. In order to determine whether such a deprivation occurred—

and whether a remedy must issue—the inquiry proceeds as follows:



       1. Did a State actor participate in the infringing conduct alleged by the
          defendant?

       2. If so, did the State actor(s) infringe upon a Sixth Amendment right of
          the defendant?

        2"We review the trial court's decision to deny a motion to dismiss under CrR 8.3 for
abuse of discretion, that Is, whether the decision was manifestly unreasonable, based on
untenable grounds, or made for untenable reasons? State v. Kone, 165 Wn. App. 420,433,266
P.3d 916(2011)(citing State v. Michielli, 132 Wn.2d 229,240,937 P.2d 587(1997). State v
Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017(1993)).


                                            -4 -
No. 75901-9-1/5



       3. If so, was there prejudice to the defendant? That is, did the State fail
          to overcome the presumption of prejudice arising from the infringement
          by not proving the absence of prejudice beyond a reasonable doubt?

       4. If so, what is the appropriate remedy to select and apply, considering
          the totality of the circumstances present, including the degree of
          prejudice to the defendant's right to a fair trial and the degree of
          nefariousness of the conduct by the State actor(s)?3

       In analyzing the matter before us, we bear this framework in mind.

                                               1

       To determine whether the trial court erred in denying Irby's motion to

dismiss, we initially address whether a State actor engaged in misconduct.

        [T]he Sixth Amendment concerns the confrontation between the State

and the individual." Michigan v. Jackson,475 U.S. 625,634, 106 S. Ct. 1404,89

L. Ed. 2d 631 (1986), overruled on other grounds by Monteio v. Louisiana, 556

U.S. 778, 129 S. Ct. 2079, 173 L Ed. 2d 955(2009).

       Irby's motion to dismiss alleged that the confrontation between himself

and the State involved conduct by jail guards employed by the county jail in

which he was being housed. The trial court agreed. On appeal, neither party

disputes that the jail guards were State actors.

       Thus, Irby established that the conduct underlying his claim involved State

actors.




        3 By contrast, when no State actor was Involved in the alleged conduct, no State actor
Infringed upon a Sixth Amendment right, or no prejudice to the defendant arose from the
Infringement, a defendant has not been deprived of a Sixth Amendment right and no remedy
need be applied.


                                              -5-
No. 75901-9-1/6


                                           2

         Having established that Irby has implicated conduct by State actors, we

next turn to whether the jail guards' conduct infringed upon his Sixth Amendment

right.

         The Sixth Amendment guarantees a criminal defendant the right to
         assistance of counsel, which includes the right to confer privately
         with that counsel. U.S. CONST. amend. VI. State intrusion into
         those private conversations is a blatant violation of a foundational
         right We strongly condemn "the odious practice of eavesdropping
         on privileged communication between attorney and client." State v.
         Cory,62 Wn.2d 371, 378, 382 P.2d 1019(1963).

State v. Pena Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257(2014). Plainly, a

defendant's Sixth Amendment right to assistance of counsel is violated when the

State intrudes into a privileged attorney-client communication. By implication, a

defendant's Sixth Amendment right is not necessarily infringed upon when the

attorney-client information acquired by the State is not privileged.

         This calls for us to initially determine whether the information exposed to

the scrutiny of the jail guards included privileged attorney-client communications.



         "The attorney-client privilege, codified in RCW 5.60.060, protects

confidential attorney-client communications from discovery so clients will not

hesitate to fully inform their attorneys of all relevant facts." Barry v. USAA, 98

Wn. App. 199, 204, 989 P.2d 1172(1999)(citing Escalante v. Sentry Ins. Co.,49

Wn. App. 375, 393, 743 P.2d 832(1987)).

               To qualify for attorney-client privilege, a communication must
         be made in confidence. Dietz v. John Doe, 131 Wn.2d 835, 849,
         935 P.2d 611 (1997). The presence of a third person during the
         communication waives the privilege, unless the third person is


                                          -6 -
No. 75901-9-1/7


       necessary for the communication, State v. Martin, 137 Wn.2d 774,
       787,975 P.2d 1020(1999), or has retained the attorney on a
       matter of"common interest," Broyles v. Thurston County 147 Wn.
       App. 409,442, 195 P.3d 985(2008).
Morgan v. City of Fed. Way, 166 Wn.2d 7471 757, 213 P.3d 596(2009). Thus, if

the Information contained in an attorney-client communication is not confidential,

the information is not protected by the attorney-client privilege.

       Irby's motion to dismiss—and accompanying exhibits and addendum—

alleged that he had sent 14 pieces of confidential correspondence containing

privileged information to Rancourt that, he argued, had been improperly opened

and read by jail guards in the Skagit County Jail. The correspondence

constituted Irby's handwritten statements on both a "Public Defender Request

Form" and jail kites—multi-purpose request forms available to inmates in the

Skagit County Jail.

       Irby's filings alleged that, prior to sending the correspondence, he had

folded each piece of paper in half, sealed each piece of paper with tape, and

written on the outward facing side,"CONFIDENTIAL,""RANCOURT," and

"ATTORNEY BOX."4




         4 Presented In this manner, Irby's correspondence did not conform to the Skagit County
Jail policy for Inmate's outgoing legal mail.
         Kites, if used to communicate with assigned counsel, standby counsel, or a
         court-designated investigator, shall also be placed In an addressed and sealed
         envelope marked 'Legal Mail." If the kite Is not so placed and marked, it may be
         unfolded and/or read to identify the addressee and means of routing.
         However, the trial court determined that the jail guards did not have a proper basis to
open and read Irby's correspondence, notwithstanding this Jail policy, because It was clear that
Irby's correspondence Identified the addressee (Rancour° and the means of routing ("Attorney
Box").
         On appeal, the State does not challenge this determination by the trial court


                                              -7-
No. 75901-9-1/8


      The parties did not dispute in the trial court nor do they dispute on appeal

that the folded and taped pieces of paper were intended to be confidential and

included privileged attorney-client information. Thus, the aforementioned

correspondence from Irby to his counsel contained privileged attorney-client

information protected by the Sixth Amendment.

                                           ii

      The next matter to address is whether the jail guards' opening and reading

of Irby's privileged attorney-client correspondence infringed upon his Sixth

Amendment right to counsel.

      As indicated, government prying into privileged attorney-client

communications is a "blatant violation" of the Sixth Amendment. Pena Fuentes,

179 Wn.2d at 811.

       In beginning its analysis, the trial court stated:

             I'm going to be finding, and I could be wrong number wise,
      that 12 out of the 14 communications that we're talking about here
      were opened and time stamped by corrections deputies in the jail.
      The other two were not stamped. And, of course, subsequently
      could have been opened by the Jail or not opened until they got to
      the receiving party. But by the time anyone saw them again they
      had already been opened. But 12 of the 14 were stamped and
      opened by the jail.

The trial court continued, "I am assuming that they were opened and opened

incorrectly and that the contents were reviewed by the custodial branch of the

Sheriffs Office?

       The parties do not dispute the trial court's finding that jail guards had

opened and read Irby's privileged attorney-client communications. Thus, the jail




                                         - 8-
No. 75901-9-1/9


guards—and therefore the State—infringed on Irby's Sixth Amendment right to

counsel. This constitutes misconduct, within the meaning of CrR 8.3.

                                          3

       Having established that State actors engaged in governmental misconduct

by reading privileged attorney-client communications, we now turn to whether

Irby was prejudiced by the misconduct. We begin with analyzing the trial court's

ruling that no prejudice resulted from the jail guards' misconduct.

                                          1

      After determining that the jail guards had engaged in misconduct by

opening and reading Irby's privileged attorney-client correspondence, the trial

court stated:

             The next step MI having found that violation(,] does the
      presumption of prejudice immediately kick in? And I have reviewed
      the cases cited by both sides, and under these circumstances
      without any indication of the investigative branch involved or direct
      taping, listening into or obtaining by an investigator this information
      I simply can't make the connection automatically that this was
      provided to anyone in the Prosecutor's Office or anyone on the
      Investigation side of the Sheriffs Office.

In this way, the trial court determined that it would not presume prejudice to Irby

because no law enforcement "investigative" personnel were involved in the jail

guards' infringing conduct.

       In reaching this determination, the trial court emphasized what it perceived

as a significant distinction between two types of State actors, law enforcement

and jail security. In making this distinction, the trial court ostensibly reasoned

that State misconduct by law enforcement is more likely to prejudice a

defendant's fair trial right than is State misconduct by jail security. From this, the


                                         - 9-
No. 75901-9-1/10


trial court then reasoned that a presumption of prejudice must apply to

misconduct by law enforcement but not to misconduct by jail security. Given

that, the trial court surmised, the defendant must have the burden of proof to

establish prejudice from the actions of jail security.

       The trial court's reasoning was flawed.

       More than half a century ago, our Supreme Court ruled that, when State

actors pry into a defendant's privileged attorney-client communications, prejudice

to the defendant must be presumed. Cory,62 Wn.2d at 377, 377 n.3("[W]e must

assume that information gained by the sheriff was transmitted to the prosecutor

and therefore "Where is no way to isolate the prejudice resulting from an

eavesdropping activity, such as this."). Recently, our Supreme Court in

Pena Fuentes reaffirmed this ruling and, in light of a State actor's eavesdropping

on privileged attorney-client communications, imposed a presumption of

prejudice. 179 Wn.2d at 818-20 (citing Con', 62 Wn.2d at 377, 377 n.3).

       But the trial court herein ignored these rulings and instead artificially

distinguished between misconduct by law enforcement and misconduct by jail

security. Such a distinction is recognized neither by our Supreme Court nor by

this court. See,en,Pet% Fuentes, 179 Wn.2d at 818-20(presuming prejudice

from miscOnduct by police detective); Cory,62 Wn.2d at 377-78(presuming

prejudice from misconduct by sheriff, his officers, and prosecutor); State v.

Perrow 156 Wn. App. 322, 332,231 P.3d 853(2010)(presuming prejudice

arising from misconduct by police detective and prosecutor); State v. Garza,99

Wn.App. 291, 301, 994 P.2d 868(2000)(presuming prejudice from misconduct



                                        - 10-
No. 75901-9-1/11


by jail guards); State v. Granacki, 90 Wn. App. 598, 603-04, 959 P.2d 667(1998)

(presuming prejudice from misconduct by police detective).

      Indeed, where State intrusion into privileged attorney-client

communications is at issue,"the defendant is hardly in a position to show

prejudice when only the State knows what was done with the information

gleaned." Pena Fuentes, 179 Wn.2d at 820. Hence,"Nile State," as "the party

that improperly intruded on attorney-client conversations,""must prove that its

wrongful actions did not result in prejudice to the defendant." Pena Fuentes, 179

Wn.2d at 820. In this way, our decisional authority presumed prejudice not

because of which State actor had engaged in misconduct but, rather, because a

State actor—and therefore the State itself—infringed upon a defendant's Sixth

Amendment right.

       Because the State actors here at issue—jail guards—infringed upon Irby's

Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred

by not imposing a presumption of prejudice after it determined that the jail guards

had opened and read Irby's communications containing privileged attorney-client

information.

                                          ii

       Irby next contends that the trial court erred by determining that he was not

prejudiced by the jail guards' intrusion into his privileged attorney-client

communications. The trial court erred, Irby asserts, because it did not require the

State to establish beyond a reasonable doubt the absence of prejudice. Irby's

contention has merit.
No. 75901-9-1/12


       The presumption of prejudice arising from a determination that the State

intruded into privileged attorney-client communications is rebuttable.

Pena Fuentes, 179 Wn.2d at 819. Once the presumption is imposed,"the State

has the burden to show beyond a reasonable doubt that the defendant was not

prejudiced." Pena Fuentes, 179 Wn.2d at 819-20 (citing Granacki, 90 Wn. App.

at 602 n.3).5

       The trial court's ruling as to whether there was prejudice to Irby was

as follows:

               The next step, of course, having found this to be a violation
       of inappropriately opening[,] is the contents therein. And from what
       I have been told today at today's hearing there was nothing in those
       contents, even if they had gone to the Prosecutors Office and even
       if they were being directly used by the Prosecutor as some type of
       a bio mechanism [sic]that would have prejudiced Mr. Irby from any
       of the information I've heard of today. It certainly would be
       inappropriate should that have actually happened. And certainly
       we would then open probably a much stronger box of general
       prosecutorial misconduct. But I have no basis of fact before me to
       find that step ever occurred or that the contents of those letters
       such that Mr. Irby is prejudiced in the presentation of his case.

       There is no indication that the trial court applied the beyond a reasonable

doubt standard as set against a presumption of prejudice in evaluating whether

Irby was prejudiced by the governmental misconduct. Rather, the trial court

appears to have weighed the evidence on a more likely than not basis starting

from a state of equipoise.

        From this, we cannot determine that the trial court would have reached the

same result had it required the State to rebut a presumption of prejudice beyond


         6 Such a showing Is required, our Supreme Court Instructed, because Itjhe constitutional
right to privately communicate with an attorney Is a foundational right. We must hold the State to
the highest burden of proof to ensure that it Is protected? Pena Fuentes, 179 Wn.2d at 820.


                                             -12-
No. 75901-9-1/13


a reasonable doubt. Indeed, the existing record is insufficient to support only the

conclusion that the State proved an absence of prejudice beyond a reasonable

doubt. Had the correct burden and presumption been utilized, we cannot be

certain as to how the trial court would have viewed the evidence.

       Pena Fuentes is instructive. There, the court addressed whether, by

submitting "a declaration stating that the detective on the case never

communicated any information about the attorney-client conversations to the

prosecution," the State proved beyond a reasonable doubt that Pena Fuentes

was not prejudiced by the governmental misconduct of the prosecution's lead

detective. Pena Fuentes, 179 Wn.2d at 811. The Pena Fuentes court

determined that a declaration submitted by the prosecutor was insufficient to

carry the State's burden. This was so, the court held, because the declaration

did not address the possibility that the prosecutor had wittingly pursued the case

in reliance on information obtained by the lead detective "as part of an

Investigation aided by the eavesdropping." Pena Fuentes, 179 Wn.2d at 822.

       Here, in response to Irby's motion to dismiss, the State submitted a

declaration in an attempt to disprove prejudice. The declaration read:

              I, Erik Pedersen, am a Senior Deputy Prosecutor with the
       Skagit County Prosecutor's Office. I have been the assigned
       prosecutor on Mr. Irby's case, since the time of his first direct
       appeal. As the assigned prosecutor, I would be informed of new
       Information received by the prosecutor's office regarding the case.
              On July 20,2016, I inquired of the lead detective on the case
       since before Irby's last trial, Detective Kay Walker, about whether
       she had received any information about communications between
       Irby and his counsel from jailers. She indicated "No one has
       shared any information at all from the jail kites. I have no idea what
       he sent, when or what about?



                                       -13-
No. 75901-9-1/14


              1 as prosecutor have also received no information from
      jailers at the Skagit County Jail regarding Mr. Irby's communication
      with his counsel.
              The only extent to which I am aware of the content of
      communications between Mr. Irby and his counsel is based upon
      the pleadings Mr. Irby filed with the trial court and a document that
      Mr. Irby had his investigator send to me. I stopped reading that
      document after 1 read the sentence beginning "Jon Ostlund went to
      Moses Lake" because it was apparent at that point that the
      pleading included communications with counsel. I have not read it
      further. I have reviewed the document further only so far as to see
      the dates on the documents and see if there are any jail stamps
      indicating receipt.

      As an initial matter, the declaration does not set forth an attestation from

Attorney Mary Ryan (the second prosecutor assigned to Irby's prosecution)that

she had no communication with the jail guards regarding the information they

gleaned from Irby's privileged attorney-client communications.

       In addition, the declaration does not identify whether there were any other

investigators assigned to Irby's prosecution (other than Detective Kay Walker)

who might have communicated with the jail guards and gleaned privileged

attorney-client information from the jail guards' misconduct. Indeed, if other

investigators participated in Irby's prosecution, the State's declaration does not

address whether those investigators had, unbeknownst to the lead detective and

prosecutor, obtained information derived from the jail deputies' misconduct, used

that information in their investigation of Irby, and/or forwarded those investigative

materials to the lead detective or to the prosecutors.

       Thus, the State's declaration did not eliminate the possibility that Irby's

right to a fair trial was prejudiced by the jail guards' misconduct Perla Fuentes,




                                        -14-
No. 75901-9-1/15


179 Wn.2d at 822. We cannot say that the declaration established that the State

proved beyond a reasonable doubt that Irby was not prejudiced.

                                                iii

       The trial court erred by denying Irby's motion to dismiss. On this record,

the trial court properly determined that the jail guards constituted State actors for

the purpose of Irby's governmental misconduct claim. Moreover, it properly

reasoned that the jail guards had infringed upon Irby's Sixth Amendment right by

opening and reading his privileged attorney-client communications.

        However, the trial court erred when it reasoned that it was not required to

impose a presumption of prejudice because a certain category of State actor (jail

security) had infringed upon Irby's Sixth Amendment right. As indicated, the

Sixth Amendment does not distinguish between State actors but, rather,

"concerns the confrontation between the State and the individual." Jackson, 475

U.S. at 634(emphasis added). In addition, we reiterate that our Supreme Court

has instructed that a presumption of prejudice mustfollow from a State actors

Infringement upon a defendant's Sixth Amendment right to counse1.6

Pena Fuentes, 179 Wn.2d at 818-20; Cory, 62 Wn.2d at 377-78.

        Furthermore, the trial court erred by not holding the State to its burden to

prove the absence of prejudice beyond a reasonable doubt.


         6 The distinctions between a jail guard and a detective may manifest themselves at a
hearing when the prosecution seeks to disprove prejudice beyond a reasonable doubt. That the
miscreant was a jail guard—rather than the lead detective—may aid in this showing or make the
presumption of prejudice easier to overcome. The trial judge was not wrong to recognize the
distinction between the two jobs. Rather, the judge simply erred by viewing this as raising a legal
issue(does the presumption of prejudice apply?) rather than an evidentiary one(do the job
differences tend to make prejudice less likely?).



                                              -15-
No. 75901-9-1/16


       Accordingly, we reverse the order denying Irby's motion to dismiss. We

remand this matter for an evidentiary hearing with instructions to the trial court!

See Pena Fuentes, 179 Wn.2d at 822; Garza 99 Wn. App. at 301-02.

                                                iv

       On remand, the trial court must commence the hearing by presuming that

the violation of Irby's right to counsel has prejudiced him. In addition, the trial

court must place on the State the burden to prove "the absence of prejudice

beyond a reasonable doubt." Pena Fuentes 179 Wn.2d at 820. Thereafter, the

trial court must marshal all of the evidence and determine whether the State's

evidence has overcome the presumption of prejudice and established the

absence of prejudice beyond a reasonable doubt.

        It is at this stage of the proceeding that a trial court properly—and

importantly—considers the role of the State actors who engaged in the

misconduct. Indeed, the inquiry of the trial court on remand might involve

determining whether the information gleaned by the jail guards was

communicated to any member of the prosecution or investigation team and, if so,

whether the information was utilized in the State's third prosecution of Irby.

        At the conclusion of the evidence, if the trial court determines that the

State's evidence overcame the presumption of prejudice, then Irby cannot be

said to have been prejudiced by the infringing conduct and no deprivation of his




       7 The error Identified does not, at this time, warrant vacation of the judgment and
sentence.


                                              -16-
No. 75901-9-1/17


Sixth Amendment right occurred. In that circumstance, denial of Irby's motion is

proper and the judgment and sentence may be left undisturbed.

       If, however, the State fails to overcome the presumption, then the

infringing conduct constituted a deprivation of Irby's Sixth Amendment right. In

such a situation, the trial court must fashion a proper remedy that includes

vacation of the judgment and sentence previously imposed.

                                           4

       Where State conduct infringes upon a defendant's Sixth Amendment right

and prejudice results to the defendant's right to a fair trial, the trial court must

select and apply an appropriate remedy and, if necessary, an appropriate

sanction.

       CrR 8.3(b) sets forth the trial court's discretion in this regard. The rule

reads, "The court ... may dismiss any criminal prosecution due to...

governmental misconduct when there has been prejudice to the rights of the

accused which materially affect the accused's right to a fair trial." (Emphasis

added.) Thus, CrR 8.3(b) grants the trial court discretion to "fashion an

appropriate remedy, recognizing that dismissal is an extraordinary remedy,

appropriate only when other, less severe sanctions will be ineffective." Garza, 99

Wn. App. at 301-02(citing Shillinoer v. Haworth, 70 F.3d 1132, 1143(10th Cir.

1995)).

       If called upon to fashion a remedy on remand, the trial court should

consider the totality of the circumstances, evaluating both the degree of prejudice

to Irby's right to a fair trial and the degree of nefariousness of the conduct by the



                                         -17-
No. 75901-9-1/18


State actors. This might Include considering the motivations of the jail guards,

Irby's failure to follow Skagit County Jail policies regarding outgoing legal mail,

and the extent to which, if at all, Irby's privileged attorney-client communications

were utilized by the State in its third prosecution of Irby or could be so utilized in

the future.

       In the event that the trial court determines that a remedy short of dismissal

Is warranted, vacation of the judgment will nevertheless be necessary. In

addition, in anticipation of yet another trial, other remedies might include—

singularly or in combination—suppression of evidence, disqualification of specific

attorneys from Irby's prosecution, disqualification of the Skagit County

Prosecuting Attorney's Office from further participation In the case, or exclusion

of witnesses tainted by the governmental misconduct.

                                           B

       We reverse the trial court's order denying Irby's motion to dismiss and

remand this matter with instructions set forth above.

       The remainder of this opinion has no precedential value. It will, therefore,

be filed for public record in accordance with the rules governing unpublished

opinions.

                                           III

       Irby next contends that the trial court erred by commenting on the

evidence during jury voir dire.

       The Washington Constitution provides,"Judges shall not charge juries

with respect to matters of fact, nor comment thereon, but shall declare the law."



                                         -18-
No. 75901-9-1/19


CONST. art. IV,§ 16. This constitutional provision is violated when a judge's

comments "imply to the jury an expression of the judge's opinion concerning

disputed evidence, or express the court's attitude towards the merits of the

cause." Hansen v. Wightman 14 Wn. App. 78, 85, 538 P.2d 1238(1975)(citing

State v. Carothers, 84 Wn.2d 256, 267,525 P.2d 731 (1974)); accord State v.

Jacobsen,78 Wn.2d 491,495, 477 P.2d 1 (1970).

      To constitute a constitutionally-offensive comment, the judge's opinion or

attitude must be "reasonably inferable from the nature or manner of the questions

asked and things said." Dennis v. McArthur, 23 Wn.2d 33, 38, 158 P.2d 644

(1945), overruled on other grounds by State v. Davis, 41 Wn.2d 535, 250 P.2d

548(1952).

       Here, the trial court sought to determine during voir dire if any of the

prospective jurors in the jury pool had been involved in a burglary. The trial court

began with a description of hypothetical burglaries, stating:

             Burglary is any entering unlawfully and committing a crime.
      So that could be anything from going into an open garage and
      taking some tools to, in this case, the charge is burglary in the first
      degree which involves either the element of a deadly weapon or
      somebody being injured in the process.
             1 have a feeling many, many of you have probably lost
      property through some type of property crime.
             Mr. Pedersen, do you want me to inquire of that or do you
      want me to narrow it to where someone's actually been injured?
             MR. PEDERSEN: Actually, burglary where property has
      been taken.
             THE COURT: Okay. So have any of you suffered a burglary
      where someone has entered into a building or property and
      committed a crime, stolen something, damaged something, if you
      would raise your numbers.




                                        -19-
No. 75901-9-1/20


Irby, granted pro se status, absented himself from voir dire. No objection was

interposed.

       The trial judge did not comment on the evidence adduced in Irby's criminal

trial. As a preliminary matter, the evidence actually adduced by the State in

support of the burglary charge was not based on Irby "going into an open garage

and taking some tools" but, rather, was based on Irby going into a bedroom and

removing firearms stored therein.

       In addition, the trial court clearly instructed the jury venire that the purpose

of its questions during voir dire was to Identify biased jurors. The trial judge

further instructed the seated jurors during trial to disregard any indication that he

had indicated his personal opinion regarding the evidence adduced at trial.

       Moreover, if other remedies could have been sought, Irby forfeited his

right to request them by absenting himself from the proceeding.

       Because the hypothetical burglary example given by the trial court during

voir dire and the evidence relied upon by the State in support of its burglary

charge were not the same and the jury was properly instructed, no reasonable

juror would have believed that the trial judge was imparting his opinion or attitude

toward the evidence during voir dire.

       There was no error.

                                            IV

       Irby next contends that the trial court denied him a fair trial by not

dismissing the jury venire after a prospective juror stated that he felt an

inclination against Irby arising from Irby's first trial.



                                           -20-
No. 75901-9-1/21


       A criminal defendant has a constitutional right to be tried by an impartial

jury. U.S. CONST. amend. VI; WASH.CONST. art. I, § 22(amend. 10); State v.

Davis 141 Wn.2d 798,824-25, 10 P.3d 977(2000). The decision to deny the

request to dismiss the jury venire is within the sound discretion of the trial court,

and we will not disturb that decision unless it was an abuse of discretion. State

v. Lewis, 130 Wn.2d 700,707,927 P.2d 235(1996). A trial court abuses its

discretion if its decision is manifestly unreasonable, or based on untenable

grounds or untenable reasons. State v. Bankston 99 Wn. App. 266, 268,992

P.2d 1041 (2000). The trial court is in the best position to determine whether a

juror can be fair and impartial based on mannerisms, demeanor, and general

behavior. State v. Noltie, 116 Wn.2d 831, 839,809 P.2d 190(1991).

       The purpose of voir dire is to allow parties to gain information, which

enables them to challenge jurors for cause or to use peremptory challenges.

State v. Frederiksen,40 Wn. App. 749, 752, 700 P.2d 369(1985). "The trial

court's exercise of discretion is limited only by the need to assure a fair trial by an

impartial jury." Frederiksen,40 Wn. App. at 752 (citing United States v. Jones,

722 F.2d 528, 529(9th Cir. 1983)).

       During voir dire, the prosecutor indicated that he had no further general

questions for the jury venire and the trial court responded:

              THE COURT: Okay. The only other point I want to ask all of
       you is — and I don't want to emphasize this too much. But I've
       already indicated that Mr. Irby, who represents himself, has chosen
       not to be here.
              I need an honest assessment from all of you that you can be
       fair and impartial regardless of his nonappearance, that you will not
       hold that against him in any way.



                                        - 21 -
No. 75901-9-1/22


               Is anyone feeling uncomfortable with the ability to evaluate
       the testimony and the evidence and decide what did or didn't
       happen regardless of someone else sitting on the other side?
               •••
               ... No.60?
               JUROR 60: From the summary I've heard, not that Ijudge,
       but! would lean more against him.
               THE COURT: Okay. I don't know how you could be leaning
       at all because you haven't heard any evidence. But I'm not trying
       to change your mind.
               The job of a jury is to start with a blank slate, if you will, listen
       to the evidence and then make a decision about whether the State
       has proven its case or not. And if you feel somehow that you're not
       able to start with a presumption of innocence and see what the
       evidence shows or doesn't show, I'm not going to hold you in. I'm
       not trying to change your mind. You don't feel you can be fair then?
               JUROR 60: From his first case, of course that's — I —
               THE COURT: All right.
               JUROR 60: I lean negative.
               THE COURT REPORTER: I'm sorry?
               THE COURT: No, let's just leave that right there. I don't
       want him to repeat that comment either.
               So Mr. Pineda, you are excused, Juror No. 60. I appreciate
       you being here. Please call the jury line Wednesday after 4:30. The
       Court has excused No. 60.
               Anyone else?
               All right.

(Emphasis added.) The trial court later identified Juror 60's utterance as a

"passing comment," that "wasn't a very strong statement," and "could be subject

to lots of interpretations."

       As indicated, Irby absented himself from voir dire. No objection was

interposed on his behalf.

       There was no abuse of discretion. The trial judge promptly comprehended

that Juror 60 had expressed a bias stemming from his knowledge of Irby's first

trial. By immediately instructing Juror 60 to stop speaking and excusing him from




                                          -22-
No. 75901-9-1/23


the jury venire, the trial judge accomplished the purpose of voir dire and thereby

protected Irby's right to trial by a fair and impartial jury.

       In addition, there is no indication that the jury venire was tainted by Juror

60's comment. Finally, if other remedies could have been sought, Irby forfeited

his right to request them by absenting himself from the proceeding.

       There was no error.

                                               V

       Irby next contends that the prosecutor engaged in misconduct by stating

during closing argument that the evidence presented during trial and the

elements of the charges brought against him were undisputed.

       We hold pro se litigants to the same standards as attorneys. State v.

Bebb, 108 Wn.2d 515, 524,740 P.2d 829(1987). Indeed,"[t]tle right to waive

counsel does not include a right to be immune from the consequences of self-

representation." State v. DeWeese, 117 Wn.2d 369, 382, 816 P.2d 1 (1991).8

       When counsel does not object to a prosecutors alleged
       misconduct, request a curative instruction, or move for a mistrial,
       appellate review of the prosecutor's conduct is precluded unless it
       was misconduct so flagrant and ill intentioned that no instruction
       could erase the prejudice engendered by it. State v. Belqarde, 110
       Wn.2d 504, 507,755 P.2d 174(1988); State v. Dunaway, 109
       Wn.2d 207, 221, 743 P.2d 1237 corrected, 749 P.2d 160(1987). If
       unchallenged misconduct was so inflammatory that an instruction
       would not have cured it, reversal of the conviction is required if
       there is a substantial likelihood that the misconduct affected the
       jury's decision. Belaarde, 110 Wn.2d at 509-10; State v. Barrow,
       60 Wn. App. 869,876, 809 P.2d 209, review denied, 118 Wn.2d
       1007, 822 P.2d 288(1991).


          8 1Ciounsel may not remain silent, speculating upon a favorable verdict and then, when
It is adverse, use the claimed misconduct as a life preserver on a motion for new trial or on
appeal.'" State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747(1994)(quoting Jones v. Hogan, 56
Wn.2d 23, 27, 351 P.2d 153(1960)).


                                             -23-
No. 75901-9-1/24


State v. Fiallo-Lopez 78 Wn. App. 717, 726,899 P.2d 1294(1995).

         Here, prior to the prosecutors closing argument, the trial court instructed

the jury that, "[t]he defendant is not required to testify or be present at trial. You

may not use the fact that the defendant has not testified or been present at trial

to infer guilt or to prejudice him in any way." In presenting closing argument, the

prosecutor began by conducting a lengthy review of the evidence presented in

the case. Then, before addressing the elements of each charged crime, the

prosecutor stated:"So what do we have? We have undisputed evidence in this

case. There is no conflicting evidence against what you have been given, and

the elements of the charges are undisputed."

         Immediately thereafter, the prosecutor began to detail the elements of the

charged crimes:"Now, when you decide the case, you have to decide the

elements of the charges. That's your roadmap for how these crimes were

committed." The prosecutor concluded by arguing that the State's case was

supported by the evidence adduced at trial and the reasonable inferences

therefrom.

         Irby, having elected to represent himself, voluntarily absented himself from

trial. No objection was interposed on his behalf during the prosecutors closing

argument.

         Irby contends that the prosecutor's statements that the evidence and

elements are undisputed constituted a comment on his election not to testify at

trial.

                 A prosecutor violates a defendant's Fifth Amendment rights
         if the prosecutor makes a statement "of such character that the jury


                                         -24-
No. 75901-9-1/25


      would 'naturally and necessarily accept it as a comment on the
      defendant's failure to testify.'" State v. Ramirez, 49 Wn. App. 332,
      336,742 P.2d 726(1987)(quoting State v. Crawford, 21 Wn. App.
      146, 152, 584 P.2d 442(1978), review denied 91 Wn.2d 1013
      (1979)). The prosecutor may say that certain testimony is undenied
      as long as he or she does not refer to the person who could have
      denied it. Ramirez 49 Wn.App. at 336.

FiaIlo-Lopez, 78 Wn. App. at 728-29; accord State v. Barry, 183 Wn.2d 297, 306,

352 P.3d 161 (2015)(citing Griffin v. California, 380 U.S. 609,609-15,85 S. Ct.

1229, 14 L. Ed. 2d 106(1965)). "The prosecutor may also comment that

evidence is undisputed when these comments are so brief and so subtle that

they do not emphasize the defendant's testimonial silence." Ramirez,49 Wn.

App. at 336 (citing Crawford, 21 Wn. App. at 152). We presume that the jury

follows the trial court's instructions. Barry, 183 Wn.2d at 306 (citing State v.

Foster, 135 Wn.2d 441,472, 957 P.2d 712(1998)).

       The prosecutors statements did not constitute a flagrant and ill-

intentioned comment on Irby's decision not to testify at his trial. In the two brief,

challenged sentences in the middle of a lengthy closing argument, the prosecutor

neither expressly identified Irby by name nor indicated that Irby had elected not

to testify at trial. Given that, the prosecutor did "not emphasize the defendant's

testimonial silence." Ramirez, 49 Wn.App. at 336 (citing Crawford, 21 Wn.App.

at 152).

       Moreover, there is no indication that the jury thought about the defendant's

silence or choice not to testify. parry, 183 Wn.2d at 308-09 (citing United States

v. Elkins, 774 F.2d 530, 537(1st Cir. 1985)). In addition, the jury was specifically




                                        -25-
No. 75901-9-1/26


instructed not to infer guilt from Irby's decision not to attend his trial. There was

no error.

       Irby next contends that the prosecutor's statements that the evidence and

elements are undisputed shifted the State's burden to prove guilt beyond a

reasonable doubt.

              A criminal defendant has no duty to present evidence, and it
       is error for the prosecutor to suggest otherwise. State v. Cheatam
       150 Wn.2d 626, 652, 81 P.3d 830(2003). An argument that shifts
       the State's burden to prove guilt beyond a reasonable doubt
       constitutes misconduct State v. Thorgerson, 172 Wn.2d 438,453,
       258 P.3d 43(2011); State v. Gregory 158 Wn.2d 759, 859-61, 147
       P.3d 1201 (2006).
               However, a prosecutor is entitled to point out the
       improbability or lack of evidentiary support for the defense theory of
       the case. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747(1994).
       A prosecutor has wide latitude to comment on the evidence
       Introduced at trial and to draw reasonable inferences from the
       evidence. Thorgerson, 172 Wn.2d at 448. The "mere mention that
       defense evidence is lacking does not constitute prosecutorial
       misconduct or shift the burden of proof to the defense." State v.
       Jackson 150 Wn.App. 877,885-86, 209 P.3d 553(2009).

State v. Osman,192 Wn.App. 355, 366-67, 366 P.3d 956(2016).

       The prosecutor's statements did not constitute a flagrant and ill-

Intentioned comment that shifted the State's burden of proof. By indicating that

the evidence in the case and the elements of the charged crimes were

undisputed, the prosecutor was merely pointing out the lack of evidentiary

support for Irby's general denial defense.

       Moreover, if other remedies could have been sought, Irby forfeited his

right to request them by absenting himself from the trial.




                                        -26-
No. 75901-9-1/27


       Irby does not demonstrate that the prosecutor engaged in flagrant and ill-

Intentioned misconduct. There was no error.9

                                                VI

        Irby submits on appeal an "informal brief of pro se appellant," which we

analyze as a pro se statement of additional grounds for relief pursuant to RAP

10.10. Each of his claims are discussed in turn.

       Irby contends that the trial court deprived him of his right to due process

during a hearing on August 12, 2016 by denying him the opportunity to read his

motions into the record and by demanding that he summarize his motions.

       The record from the August 12 hearing does not support Irby's contention.

He was allowed to read at length from his motion to dismiss, the trial court did not

demand that he summarize his motions, and the trial court afforded him ample

time to argue his position. There was no error.

        Irby next contends that the trial court erred by denying his Brady motion

because the State did not disclose Federal Emergency Management Agency

files that, he argues, were relevant to whether there was "a robbery/homicide

motive to the crime? In a criminal case, the prosecution must disclose to the

defense any evidence that is favorable to the accused and material to guilt or

punishment. Brady v. Maryland, 373 U.S. 83,87, 83S. Ct. 1194, 10 L. Ed. 2d

215(1963). Irby does not explain how this evidence is material to the purpose

for which he sought to use it. Irby's claim fails.


        9 Irby's appellate briefing also contends that the cumulative error doctrine mandates
reversal. As Indicated, the trial court erred by not presuming that Irby was prejudiced in analyzing
his CrR 8.3(b) motion. However, no further trial court error occurred. Thus, Irby's cumulative
error contention fails.


                                              -27 -
No. 75901-9-1/28


       Irby next contends that the State was judicially estopped from disputing

whether the trial court should hold an evidentiary hearing regarding the facts

underlying Irby's motion to dismiss. This is so, Irby avers, because the State

suggested that the trial court hold an evidentiary hearing and, one month later,

suggested that the trial court not do so. However, a trial court's "[a]cceptance of

an initial position is a precondition to the application of judicial estoppel." Taylor

v Bell 185 Wn.App. 270,284, 340 P.3d 951 (2014). The trial court herein did

not accept the State's position during the July hearing but, rather, delayed

determining whether to hold an evidentiary hearing until the hearing in August.

There was no error.

       Irby next contends that he was deprived of his right to effective assistance

of counsel because his attorney neither investigated his accusations that his

legal correspondence was being read by jail guards nor sent him a sufficient

number of envelopes into which he could deposit the legal correspondence he

wished to mail to her.

       To show the prejudice required to prevail on a claim of ineffective

assistance of counsel, Irby must establish that a reasonable probability exists

that, but for his counsel's failure to conduct an investigation into the opening of

the jail kites and failure to send him additional mailing envelopes, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S.668,

694, 104 S. Ct. 2052, 80 L Ed. 2d 674(1984).

       Irby does not demonstrate that the result of the proceeding would have

been different had his counsel investigated the opening of jail kites or sent him



                                         -28-
No. 75901-9-1/29


additional envelopes. Notably, two weeks after the jail kites had been opened by

the jail guards, Irby's request to proceed pro se was granted. Irby does not

demonstrate that, during that two week period, an investigation by his counsel

would have uncovered information that would have probably changed the

outcome of his trial. Moreover, Irby does not establish that his counsel had a

duty to send him envelopes nor does he establish that, had he obtained

additional envelopes, the result of the trial would probably have been different.

         Accordingly, Irby does not satisfy the prejudice prong of the Strickland

testi°

         The judgment is affirmed but the order denying the CrR 8.3 motion is

reversed; the cause is remanded for further proceedings.




We concur:



                                                 _cif-6_1\N\ r




        10 Irby also contends that the trial court erred by denying his motion to dismiss. This
Issue was raised and well-argued by Irby's counsel on appeal.


                                              -29 -
