       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HAROLD H. WRIGHT, JR., and SYDNI
WRIGHT, husband and wife,                 No. 71869-0-1

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PIERCE COUNTY, a municipal                                         3a»
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corporation; GERALD and JANE DOE                                   rs         :r>.,'•

HORNE, in his capacity as Pierce                                   U5         O    CO

County Prosecutor as well as his                                   CO
marital community; MARK LINDQUIST
in his capacity as Pierce County
Prosecutor as well as his marital
community and JANE DOE LINDQUIST;         UNPUBLISHED OPINION
PAUL and JANE DOE PASTOR, in his
capacity as Pierce County Sheriff as      FILED: August 31, 2015
well as his marital community; MARY
and JOHN DOE ROBNETT and the
marital community comprised thereof;
LORI KOOIMAN in her capacity as
Pierce County Deputy Prosecutor, an
individual; MARY ROBNETT and
JOHN DOE ROBNETT in her capacity
as Pierce County Prosecutor and JOHN
DOE ROBNETT and the marital
community comprised thereof; MARK
and JANE DOE PARFITT in his capacity
as Pierce County Deputy Sheriff as
well as his marital community; JAMES
and JANE DOE HARAI in his capacity
as Pierce County Deputy Sheriff as well
as his marital community; KEN and
JANE DOE BOARD, in his capacity as
Pierce County Deputy Sheriff as well as
his marital community,

                    Respondents.
No. 71869-0-1/2



      Becker, J. — Appellant Harold Wright attempts to hold Pierce County

liable for mishandling the investigation and prosecution of a rape he was alleged

to have committed. We affirm the order dismissing Wright's claims on summary

judgment.

      The long history of this litigation began in January 2004 with the report of

a rape. In 2007, the State, through the Pierce County Prosecutor, charged

Harold Wright and another defendant with second degree rape. Both men were

convicted of third degree rape. Their convictions were reversed in September

2009 because the jury was improperly allowed to consider third degree rape—

unforced, nonconsensual rape—as a lesser offense of second degree rape. The

victim's testimony "supports only second degree rape and the defendant's

evidence supports only that no rape occurred." State v. Wright, 152 Wn. App. 64,

73-74, 214 P.3d 968 (2009). review denied. 168 Wn.2d 1017 (2010).

      The State renewed the charge of second degree rape in May 2010.

      On February 9, 2011, Wright and his wife initiated this litigation, asserting

claims under 42 U.S.C. § 1983 and state law. Named as defendants were Pierce

County and a number of county officials: the county prosecutor, several deputy

prosecutors, the sheriff, and two deputy sheriffs. The defendants immediately

removed the case to federal court.

       In January 2013, the State moved to dismiss the criminal prosecution of

Wright, citing problems with the evidence. The trial court granted the motion.
No. 71869-0-1/3



       In August 2013, the federal district court granted summary judgment on

Wright's federal causes of action and remanded the case for further proceedings

in state court. Wright did not appeal that ruling.

       In December 2013, the defendants moved for summary judgment on the

state law claims in superior court. These claims included negligent training,

negligent retention, outrage, malicious prosecution and abuse of process,

defamation, and a loss of consortium claim by Wright's wife. The trial court

granted the motion for summary judgment inApril 2014. Wright appeals.

       We review orders granting summary judgment de novo. We take all

factual inferences in favor of Wright as he is the nonmoving party. Musso-

Escude v. Edwards, 101 Wn. App. 560, 563, 4 P.3d 151 (2000).

       Recounted in the light most favorable to Wright, the basic facts are that he

was accused of raping a woman at a party where everyone was drinking. The

complaining witness said someone pulled her into a bedroom where it was dark.

She testified that it felt like two men removed her clothing and participated in the

rape, but she could not see who they were and she could not identify their

voices. She thought Wright might have been one of them because she felt a

leather jacket when she was pulled into the room and Wright was the only man

wearing a leather jacket. Wright was further implicated when a forensic

examination indicated that his saliva was on the victim's chest. Wright testified

that he did not have sexual contact with the victim. The other defendant testified

that his intercourse with the victim was consensual. Wright, 152 Wn. App. at 68-

69.
No. 71869-0-1/4



       One of the central disputes in the present litigation is whether the

prosecutors constructively destroyed evidence of an exculpatory statement the

victim allegedly made to deputy prosecutor Sunni Ko. Ko interviewed the victim

in April 2004 and wrote down some statements the victim made during the

interview. Wright was not given copies of Ko's notes. During preparation for the

second trial, Jared Ausserer, another deputy prosecutor, emailed Wright's

criminal defense attorney, Barbara Corey, summarizing the statements the victim

made to Ko. Ausserer's email refers to a "work product packet" that deputy

prosecutor Lori Kooiman found in an archived box.

       Wright submitted Corey's declaration in response to the motion for

summary judgment. Corey declared that contrary to what Ausserer said in his

written email to her, Ausserer told her verbally that he actually found the victim's

statements to Ko in Kooiman's garage. Wright claims that an issue of material

fact arises from Corey's further declaration that Ausserer told her—contrary to the

summary of the victim's statements presented in Ausserer's email—that the

victim admitted to Ko that Wright was not in the room at the time of the rape.

Corey declares that she "was astonished" and told Ausserer that the State should

have turned this exculpatory evidence over to the defense years ago. Corey

declares that "Ausserer agreed."

       Another focal point of this litigation is the 911 call that reported the rape

the morning after the party. The actual recording of the call was not preserved.

Wright alleges that the recording was intentionally destroyed, making some of the

County defendants liable for malicious prosecution. The County contends it was
No. 71869-0-1/5



recorded over in the normal course of business. In any event, although the

recording itself was not preserved, a computer aided dispatch (CAD) report

contained a summary of the call. The CAD report was not disclosed to the

defense until December 2012, a month before the prosecution was dismissed.

The report states the caller's daughter and friend said that they were both raped

by Wright. This was inconsistent with the testimony of the State's witnesses that

only one woman was raped. The State's motion to dismiss describes the report

as "recently discovered" and mentions it as one of the evidentiary problems that

weakened the prosecution. Wright contends the failure to preserve the original

recording of the 911 call is evidence of the prosecutors' willful disregard of their

obligation to disclose exculpatory evidence.

       The trial court's written ruling on summary judgment states a number of

alternative legal bases for the order of dismissal: Wright's claims lack a factual

basis, are barred by collateral estoppel, are untimely under the statute of

limitations, are subject to the complete defense of probable cause, and cannot

overcome immunity. We find no error in the trial court's ruling. We will focus

primarily on immunity.

       Immunity decisions regarding the liability of a state prosecutor depend on

the nature of the function performed, not the identity of who performed it. Kalina

v. Fletcher. 522 U.S. 118, 127, 130-31, 118 S. Ct. 502, 139 L Ed. 2d 471 (1997).

       A prosecutor's decision not to preserve or turn over exculpatory material

before trial, during trial, or after convictions is an exercise of the prosecutorial

function for which a prosecutor enjoys absolute immunity from a suit for
No. 71869-0-1/6



damages. Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003); Ybarra v. Reno

Thunderbird Mobile Home Vill., 723 F.2d 675, 679-80 (9th Cir. 1984). Absolute

immunity bars Wright's claims based on failure by the prosecutors to preserve

the 911 recording summarized in the CAD report.

      Absolute immunity does not apply to a prosecutor's deliberate destruction

of evidence. Yarris v. County of Delaware, 465 F.3d 129, 136-38 (3d. Cir. 2006).

Based on Corey's declaration, Wright argues that Kooiman "constructively

destroyed" the victim's statements to Ko by hiding Ko's notes in her garage and

that the record supports an inference that Kooiman's conduct was deliberate.

      Wright cites no case holding that withholding evidence for a prolonged

period of time is the same as destroying it. Rather, prosecutors are entitled to

immunity even when they withhold evidence after trial while a conviction is on

appeal. Yarris, 465 F.3d at 137. Immunity thus bars Wright from suing Kooiman

for her alleged concealment of the victim's statements to Ko.

       Wright asks us to assume the truth of Corey's declaration that Ausserer

told her that the victim told Ko that Wright was not in the room when the alleged

rape occurred. Assuming the victim's statements to Ko cleared Wright of the
rape allegation, Wright contends Kooiman maliciously initiated the first

prosecution without probable cause to believe Wright committed rape. This
conduct, according to Wright, constitutes malicious prosecution and the tort of

outrage.

       In June 2007, a few months after Kooiman initiated the first prosecution,

Kooiman presented a 16-page document to the trial courtfor an in camera
No. 71869-0-1/7



review. The trial court determined that the document was nondiscoverable

attorney work product. Kooiman's declaration states that the statements the

victim made to Ko were contained in that document. Wright has not rebutted that

declaration, so the County has established that the trial court's ruling classified

Ko's interview notes as work product. That ruling insulates the County from the

claim of malicious prosecution or any other claim based on the obligation of

prosecutors to turn over exculpatory information to the defense, regardless of

whether or not Corey accurately related her communications with Ausserer and

whether or not Corey's declaration relies on inadmissible hearsay.

       Wright also argues that Kooiman, by swearing to the truth of the facts

contained in the statement of probable cause, relinquished absolute immunity

from suit on these causes of action. A prosecutor is not immune from litigation

relating to a probable cause certification in which she served the function of a

witness by personally swearing to the truth of the evidence presented. This is

because testifying about facts is the function of the witness, not a lawyer. Kalina.

522 U.S. at 130-31. This case is not like Kalina. In the charging document in the

first prosecution, Kooiman certified that she had become familiar with an

investigation of Wright regarding a rape, and she described aspects of the

sheriff's investigatory efforts. Contrary to Wright's allegation, she did not swear

to the truth of the forensic evidence that Wright's saliva was found on the victim's

chest. She served a prosecutorial function for which she is immune. Moreover,
No. 71869-0-1/8



although the accuracy of the forensic evidence was thrown into doubt as the

second trial approached, the judge at the first trial found it sufficient to defeat a

motion for a directed verdict.

       Because the prosecutors are immune, Wright's supervisory claims against

Pierce County were also properly dismissed. Creelman v. Svenning, 67 Wn.2d

882, 885, 410 P.2d 606 (1966).

       Wright also contends that in May 2010, when the State renewed the

charges after the first conviction was reversed, Kooiman stepped out of her

prosecutorial function by making a defamatory public statement about him.

Speaking to a Tacoma newspaper regarding Wright and the other criminal

defendant, Kooiman said the decision was made to retry them because '"We

think they are guilty of the crime.'"

       A prosecutor's statements to the media are not entitled to absolute

immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 277, 113 S. Ct. 2606, 125 L.

Ed. 2d 209 (1993). Nevertheless, Kooiman's statement was not actionable as

defamation because it was not provably false. See Schmalenberg v. Tacoma

News, Inc., 87 Wn. App. 579, 590-91, 943 P.2d 350 (1997). review denied, 134

Wn.2d 1013 (1998).

       Kooiman's statement to the press that Wright was guilty summarized the

official position of the prosecutor's office at that particular time. It explained why

the reversal of the first conviction was not going to result in the charges being

dropped. In that context, Kooiman's statement was an opinion or idea, not a

statement of some fact that she either knew or should have known was



                                           8
No. 71869-0-1/9



untrue. As an opinion, it was supported by the corroborating forensic evidence

that the trial judge found was sufficient to let the question of Wright's guilt go to

the jury. Also, as a public official making a statement about a matter within her

official duties, Kooiman had at least a qualified privilege. Gold Seal Chinchillas.

Inc. v. State, 69 Wn.2d 828, 832-34, 420 P.2d 698 (1966); Wood v. Battle

Ground Sch. Dist. 107 Wn. App. 550, 569, 27 P.3d 1208 (2001). The record is

insufficient to prove she abused the privilege. We conclude Kooiman's statement

to the press is not actionable as defamation.

       Wright alleged claims of malicious prosecution against the sheriff and his

deputies for improperly conducting coached group interviews with the witnesses

and presenting the prosecution with information they knew to be false.

       A prosecutor's independent decision to file an information may break the

chain of causation between the unconstitutional actions of other officials and the

harm suffered as a result of those actions. See Beck v. City of Upland, 527 F.3d

853, 862 (2008). Here, the circumstances suggest the deputies may not have

used the most reliable interview techniques, but that does not mean they

compromised the prosecutor's independent judgment by supplying information

they knew to be false. The trial court correctly concluded that Wright lacked

proof of the element of proximate cause with respect to the claims against the

deputies. The chain of causation was broken by the prosecutor's decision to

charge.
No. 71869-0-1/10



      Affirmed.




                        ffec-feg^f.
WE CONCUR:




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