                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 28, 2020
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

    In the Matter of the Personal Restraint of:                     No. 51915-1-II

    TYRONE EAGLESPEAKER
                                                              UNPUBLISHED OPINION
                                   Petitioner.



          LEE, C.J. — In this personal restraint petition (PRP), Tyrone Eaglespeaker seeks to have

his second degree rape conviction vacated and a new trial ordered based on newly discovered

evidence that (1) the victim had falsified rape allegations in Oregon prior to his trial and (2) an

exculpatory witness had observed Eaglespeaker and the victim kissing hours before the rape. He

also argues that the State violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), when it failed to disclose this evidence to him. We deny

Eaglespeaker’s petition.

                                                  FACTS1

A.        BACKGROUND FACTS

          In December 2012, Deputy Christian Lyle responded to a reported rape and burglary in

Skamania County. When he arrived on scene, the caller, J.R.,2 told Deputy Lyle that her friend’s

boyfriend, Eaglespeaker, had entered her apartment without her permission and raped her.


1
  The background facts are taken from this court's opinion in State v. Eaglespeaker, No. 44998-
6-II (Wash. Ct. App. May 12, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2044998-6-
II%20%20Unpublished%20Opinion.pdf.
2
     We use J.R.’s initials to protect her privacy.
No. 51915-1-II



       The State charged Eaglespeaker by amended information with first degree rape, first degree

burglary, possession of a controlled substance - methamphetamine, and use of drug paraphernalia.3

The following evidence was presented at trial: J.R. and Eaglespeaker exchanged several text

messages throughout the evening of December 19 and into the early morning hours of December

20. J.R. fell asleep around 3:30 a.m. on December 20. She awoke to find Eaglespeaker standing

in her bedroom. Eaglespeaker forced himself on top of J.R. and penetrated her vagina with his

fingers. J.R. did not call the police immediately because she had used drugs and feared that Child

Protective Services (CPS) might take her children away. After J.R. called the police, Eaglespeaker

admitted to law enforcement that he “finger banged” J.R. Eaglespeaker, No. 44998-6, slip op. at

3.

       At the State’s request, and over Eaglespeaker’s objection, the trial court instructed the jury

on the lesser included offense of second degree rape. The jury found Eaglespeaker guilty of second

degree rape and the drug charges, and not guilty of first degree burglary.

       Eaglespeaker appealed, and on May 12, 2015, we affirmed his convictions in an

unpublished opinion. On November 13, we issued the mandate to the trial court.

B.     PRP FACTS

       On February 23, 2016, Eaglespeaker filed a motion for relief from judgment under CrR

7.8(b)(2)4 and (5)5. Eaglespeaker argued that he was entitled to a new trial based on newly


3
  The drug charges were based on evidence discovered through further investigation of
Eaglespeaker and are not at issue in this PRP.
4
  CrR 7.8(b)(2) provides relief for “[n]ewly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under [CrR] 7.5.”
5
  CrR 7.8(b)(5) provides relief for “[a]ny other reason justifying relief from the operation of the
judgment.”


                                                 2
No. 51915-1-II



discovered evidence that J.R. had fabricated a rape allegation in Oregon in 2011. He also claimed

that he had learned of an exculpatory witness, Russell Helm, who could have testified to seeing

Eaglespeaker and J.R. kissing on J.R.’s couch the evening before the rape allegedly occurred.

Eaglespeaker further argued that the State had violated its Brady obligations by not disclosing

J.R.’s 2011 false rape allegation or information about Helm prior to trial.

       In support of his motion, Eaglespeaker filed Exhibit A, which is a report from the

Beaverton, Oregon Police Department detailing J.R.’s false rape allegation made in 2011. In 2011,

J.R. reported that two males had broken into her Oregon apartment, assaulted her, and raped her

with a pair of scissors. J.R. later admitted to law enforcement that she had fabricated the entire

incident and had inflicted the injuries on herself.

       Eaglespeaker also supported his motion with Exhibit B, which is a letter from the Skamania

Prosecuting Attorney’s Office to his appellate counsel dated February 14, 2014. In this letter, the

prosecutor explained that he had interviewed Helm as a witness in a separate criminal case in

which J.R. was an alleged victim. The prosecutor also provided his personal notes detailing the

conversation he had with Helm, attached as Exhibit C to Eaglespeaker’s PRP. The notes contained

the prosecutor’s interpretation of what Helm said about the night of the rape:

       Tried telling Deputy Hepner at the time—don’t know why he did not speak to me—
       I had information on the other case (i.e. Eaglespeaker)—I was there at supposed
       rape—she was hanging out with Eaglespeaker the whole time—every night—when
       her boyfriend was in jail—an hour before—no 10:30 PM—the night of the
       supposed rape—she was sitting on the couch cuddling and kissing Eaglespeaker—
       hanging out for two weeks with him—shocked me.

PRP Ex. C at 1.6



6
  We note that the Exhibit C of the PRP does not contain page numbers. For our purposes we will
number the pages of Exhibit C 1-3 starting with the first page of the exhibit.


                                                  3
No. 51915-1-II



       Eaglespeaker also provided a declaration from Helm stating in part:

               4.      In the several days preceding the alleged rape, I witnessed the
       Defendant (whose name I did not know until recently), at her apartment. I observed
       them together on the couch and other locations in the apartment having physical
       relations, such as kissing and touching.

               ....

                 7.      When I entered the apartment, I observed the Defendant . . . holding
       . . . [J.R.] on the couch. They appeared to be lounging on one another.

              8.      She did not ask the Defendant to leave or otherwise show any signs
       of alarm. (I saw the defendant leave and return later the same night, and walk
       through the front door.)

               ....

              10.    Several days later I learned of the rape allegations. I immediately
       believed them to be false because [J.R.] also falsely accused my wife of assaulting
       her, which was ultimately dismissed by Skamania County.

               ....

              12.     I told the deputy that I did not believe a rape could have occurred
       because I had observed the alleged victim and the defendant in close physical
       contact on the couch on the evening that the rape allegedly occurred.

Decl. of Gregory S. Cheney, Ex. A at 1-2 (Decl. of Russell Helm).

       Eaglespeaker further supported his motion with Exhibit D, which is a 2013 report from the

Beaverton, Oregon Police Department. The Oregon detective wrote in the report that two

witnesses contacted him and provided a video copy of a child dependency proceeding in Skamania

County that took place on April 10, 2013. The report states that at the 2013 dependency hearing,

J.R. admitted that she had falsified rape allegations in January 2011.

       Eaglespeaker also provided evidence that allegedly showed the prosecutor was aware that

J.R. had a fabricated rape allegation in 2011. At a pretrial motion in limine hearing on April 22,

2013, the prosecutor noted that he “actually stepped into the dependency hearing [on April 12,


                                                 4
No. 51915-1-II



2013] that a lot of this was based on and have been in regular touch with [defense counsel] about

the issue.” Verbatim Report of Proceeding (VRP) (April 22, 2013) at 5. The prosecutor stated

that he understood the facts as

         a domestic violence incident where I think, [defense counsel] can correct me if I’m
         wrong, but my understanding is [J.R.] was basically covering for the perpetrator.
         She was basically feeling like she—sort of acting in a way like a stereotypical or a
         kind of the domestic violence dynamic that we talk about.

VRP (April 22, 2013) at 9. The prosecutor noted, “It might be different if there was a prior

admission to perjury where she accused someone of an incident like this and then later said that

she lied about it.” VRP (April 22, 2013) at 10. The prosecutor also noted that defense counsel

was “actually probably in a better position than I am on this because he was an attorney in that

hearing and knows much more about it than I do.” VRP (April 22, 2013) at 3.7

         Eaglespeaker further provided emails and an exemptions list8 between Department of

Social and Health Services (DSHS), the Skamania County Sheriff’s Office, and the Attorney

General’s Office related to incident number 13-02315, in which the foster parent of J.R.’s children

was caught with marijuana in their car. Eaglespeaker also submitted evidence of a Skamania

County Prosecutor’s Office child abuse report related to J.R. of an incident that occurred on May

31, 2013.9


7
  There is a discrepancy in the date of the dependency hearing in question. The Beaverton, Oregon
Police Department report and the Declaration of Gregory Cheney in Support of Motion for Relief
state that the dependency hearing was on April 10, 2013. But at an April 22, 2013 hearing, the
prosecutor discussed a dependency hearing that occurred on April 12, 2013. It is unclear from the
record whether these are the same hearing or different dependency hearings.
8
    List of public records exemptions commonly applicable to Attorney General’s Office records.
9
  This evidence was submitted with a Supplemental Affidavit in Support of Motion for Relief
from Judgment Transferred as a PRP. It was filed on June 14, 2019.



                                                  5
No. 51915-1-II



         The trial court found that Eaglespeaker had failed to establish a prima facie case that the

State had committed a Brady violation. It also found that Eaglespeaker had failed to meet the

requirements for newly discovered evidence to warrant a new trial because the information

regarding J.R.’s prior false rape allegation was merely cumulative or impeaching, and the

information related to Helm was previously discoverable through the exercise of due diligence.

Accordingly, the trial court denied Eaglespeaker’s motion for a new trial and transferred the

motion to this court for consideration as a PRP in accordance with CrR 7.8(c)(2).10

                                              ANALYSIS

         Eaglespeaker argues that he should be granted a new trial based on the newly discovered

evidence that J.R. had falsified rape allegations in Oregon in 2011 and that Helm had observed

Eaglespeaker and J.R. kissing hours before the rape. He also maintains that relief from judgment

is warranted because the prosecuting attorney violated his Brady obligations when he failed to

disclose this evidence. We disagree.

A.       STANDARD OF REVIEW

         To be entitled to relief on a PRP, a petitioner must show (1) actual and substantial prejudice

by a constitutional error, or (2) a fundamental defect of a nonconstitutional nature that inherently

resulted in a complete miscarriage of justice. In re Pers. Restraint of Finstad, 177 Wn.2d 501,

506, 301 P.3d 450 (2013). “Relief by way of a collateral challenge to a conviction is extraordinary,



10
     Under CrR 7.8(c)(2),

         The court shall transfer a motion filed by a defendant to the Court of Appeals for
         consideration as a personal restraint petition unless the court determines that the
         motion is not barred by RCW 10.73.090 and either (i) the defendant has made a
         substantial showing that he or she is entitled to relief or (ii) resolution of the motion
         will require a factual hearing.


                                                    6
No. 51915-1-II



and the petitioner must meet a high standard before this court will disturb an otherwise settled

judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011) (citing In re

Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)).

       Whether based on a constitutional or nonconstitutional error, a petitioner must state with

particularity the factual allegations that underlie his claim of unlawful restraint. In re Pers.

Restraint of Schreiber, 189 Wn. App. 110, 113, 357 P.3d 668 (2015). Bald assertions and

conclusory allegations are insufficient to warrant relief. Id.. And the petitioner’s allegations must

have evidentiary support. Id. “‘If the petitioner’s evidence is based on knowledge in the

possession of others, he may not simply state what he thinks those others would say, but must

present their affidavits or other corroborative evidence.’” In re Pers. Restraint of Monschke, 160

Wn. App. 479, 488-89, 251 P.3d 884 (2010) (quoting In re Pers. Restraint of Rice, 118 Wn.2d

876, 886, 828 P.2d 1086, cert denied, 506 U.S. 958 (1992)).

       A PRP will be denied if the petitioner fails to make a prima facie showing of either actual

and substantial prejudice from a constitutional error or a fundamental defect from a

nonconstitutional error. Schreiber, 189 Wn. App. at 113. A PRP will be granted if we are

convinced that the petitioner has proven actual and substantial prejudice or a fundamental defect.

Id.

B.     NEWLY DISCOVERED EVIDENCE

       Eaglespeaker argues that a new trial is warranted in light of the newly discovered evidence

of J.R.’s 2011 false rape allegation and Helm’s observations on the night of the rape.11 We

disagree.


11
  Eaglespeaker provides argument in his Second Statement of Supplemental Authorities. Under
RAP 10.8, “A party or amicus curiae may file a statement of additional authorities. The statement


                                                 7
No. 51915-1-II



       1.      Legal Principles

       To be entitled to a new trial based on a claim of newly discovered evidence, the petitioner

must show that the evidence (1) will probably change the outcome of the trial, (2) was discovered

after trial, (3) could not have been discovered before trial through the exercise of due diligence,

(4) is material, and (5) is not merely cumulative or impeaching. In re Pers. Restraint of Lui, 188

Wn.2d 525, 569, 397 P.3d 90 (2017). Absence of any one of these five factors is sufficient grounds

to deny a new trial. In re Pers. Restraint Faircloth, 177 Wn. App. 161, 166, 311 P.3d 47 (2013).

       Under RAP 16.4(c)(3), a claim of unlawful restraint may be based on the existence of

material facts that have not previously been presented and that, in the interest of justice, require

that the conviction be vacated. For matters outside the existing record, the petitioner must

demonstrate that he has competent, admissible evidence based on more than speculation,

conjecture, or inadmissible hearsay to establish the facts that entitle him to relief. In re Pers.

Restraint Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013); Rice, 118 Wn.2d at 886.

       2.      Evidence Considered

       Eaglespeaker argues that he is entitled to a new trial based on the newly discovered

evidence that J.R. falsified a rape allegation in 2011. Eaglespeaker relies on the following “new”

evidence in support of his argument that the victim, J.R., fabricated the rape for which he was

convicted: a Beaverton, Oregon Police Department report; a letter from the Skamania Prosecuting

Attorney’s Office to Eaglespeaker’s appellate attorney; the prosecutor’s personal notes detailing

the conversation he had with Russell Helm, a witness; a 2013 report from the Beaverton, Oregon




should not contain argument, but should identify the issue for which each authority is offered.”
However, based on our prior orders, we consider the arguments raised in Eaglespeaker’s Second
Statement of Supplemental Authorities.


                                                 8
No. 51915-1-II



Police Department detailing how the victim, J.R. perjured herself at a grand jury hearing in a 2009

assault case; and Helm’s declaration.

       Exhibits A through D are inadmissible hearsay and thus are not competent admissible

evidence. ER 801(c); Rice, 118 Wn.2d at 886; Yates, 177 Wn.2d at 18. Also, Eaglespeaker

acknowledges that the only value of the evidence is for impeachment purposes. Thus, even if

Exhibits A through D were admissible, Eaglespeaker fails to show that this evidence is not merely

cumulative or impeaching, and he is not entitled to a new trial on this basis.

       3.      Admissible Evidence Does Not Support Granting a New Trial

       Eaglespeaker fails to show that he could not have discovered the evidence related to the

disclosure of J.R.’s 2011 false rape allegation prior to his trial through the exercise of due

diligence. His defense counsel was at the April 2013 dependency hearing, which was a month

before Eaglespeaker’s trial began and which was where J.R. allegedly testified about her 2011

false rape allegation. Thus, defense counsel would have been aware of and could have discovered

through the exercise of due diligence that the 2011 false rape allegation was impeaching evidence.

       As to Helm being a potential exculpatory witness, Eaglespeaker fails to show that he could

not have discovered this evidence prior to trial through the exercise of due diligence. 12 Helm’s



12
   The State argues that Helm’s declaration should be considered a subsequent personal restraint
petition under RCW 10.73.140. RCW 10.73.140 states,

       If a person has previously filed a petition for personal restraint, the court of appeals
       will not consider the petition unless the person certifies that he or she has not filed
       a previous petition on similar grounds, and shows good cause why the petitioner
       did not raise the new grounds in the previous petition.

However, the plain language of RCW 10.73.140 does not support the State’s position because
Helm’s declaration was filed in support of Eaglespeaker’s existing petition and does not refer to
the filing of an additional petition.


                                                  9
No. 51915-1-II



declaration states that he saw J.R. and Eaglespeaker in close physical contact on the couch on the

evening that the rape occurred. If true, Eaglespeaker would have been aware that someone was at

the apartment the night he raped J.R. and could have discovered through the exercise of due

diligence that Helm was a potential defense witness. Additionally, the evidence of J.R. and

Eaglespeaker kissing and touching on the couch does not demonstrate that Eaglespeaker did not

rape J.R. Therefore, this evidence could have been discovered through the exercise of due

diligence before trial and is not material and not a basis to grant a new trial. See In re Pers.

Restraint of Lui, 188 Wn.2d 525, 569.

       Further, Eaglespeaker points to J.R.’s testimony that she did not leave her front door

unlocked versus Helm’s declaration saying that he saw Eaglespeaker walk through the front door.

This is merely impeaching evidence.

       The admissible evidence Eaglespeaker relies on are merely impeaching, could have been

discovered through the exercise of due diligence, and are not material. Thus, Eaglespeaker is not

entitled to a new trial. Because Eaglespeaker fails to show actual and substantial prejudice from a

constitutional error or a fundamental defect from a nonconstitutional error, his challenge based on

newly discovered evidence fails.

C.     BRADY OBLIGATIONS

       Next, Eaglespeaker claims that a new trial is warranted because the State’s failure to

disclose information related to J.R.’s 2011 false rape allegation and Helm constitutes a Brady

violation. We disagree.




                                                10
No. 51915-1-II



       1.      Legal Principles

       In Brady, the United States Supreme Court outlined the government’s disclosure

requirements in a criminal prosecution: “the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

Violation of the rule promulgated in Brady is a violation of a defendant’s constitutional due process

rights. State v. Mullen, 171 Wn.2d 881, 893, 259 P.3d 158 (2011). “‘The animating purpose of

Brady is to preserve the fairness of criminal trials.’” Id. at 895 (quoting Morris v. Ylst, 447 F.3d

735, 742 (9th Cir.2006), cert. denied, U.S. 1125 (2007)).

       To establish a Brady violation, the defendant must demonstrate (1) the evidence at issue

was favorable to the accused, (2) the State suppressed the evidence, either willfully or

inadvertently, and (3) the suppression resulted in prejudice. Id. Favorable evidence under Brady

includes both exculpatory and impeachment evidence. State v. Davila, 184 Wn.2d 55, 70, 357

P.3d 636 (2015).

       Brady obligations include evidence contained in the prosecutor’s file, as well as evidence

in the possession of the police and others working on the State’s behalf. Mullen, 171 Wn.2d at

895. However, “‘[t]he prosecution is under no obligation to turn over materials not under its

control.’” Id. (quoting United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)). Though the

prosecutor must disclose information within the possession or control of law enforcement

personnel, “‘it has no duty to volunteer information that it does not possess or of which it is

unaware.’” Id. (quoting United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir.), cert.

denied, 471 U.S. 1139 (1985)). Additionally, a prosecutor only has “the duty to learn of evidence

favorable to the defendant that is known to others acting on behalf of the government in a


                                                 11
No. 51915-1-II



particular case.” In re Pers. Restraint of Brennan, 117 Wn. App. 797, 804, 72 P.3d 182 (2003)

(emphasis added).

       2.      False Rape Allegation13

               a.      Imputing knowledge on the prosecutor

       Eaglespeaker claims that knowledge held by others should be imputed on the prosecutor

and thus, the prosecution suppressed evidence favorable to him “by failing to turn over evidence

of the victim’s prior recantation and statements by an exculpatory witness in the possession of

police working the case.” PRP at 14. We disagree.

       Eaglespeaker identifies the parties with knowledge of J.R.’s 2011 false rape allegation as

the Beaverton, Oregon Police Department, Skamania County Sheriff’s Office, DSHS, and the State

Attorney General’s Office. Eaglespeaker argues that knowledge held by these entities must be

imputed on the prosecutor that handled his rape case. But Eaglespeaker provides no authority

supporting his claim that the prosecutor can be imputed knowledge held by the Beaverton, Oregon

Police Department, DSHS, or the State Attorney General’s Office. And Eaglespeaker provides no

evidence that the Beaverton, Oregon Police Department, DSHS, or the State Attorney General’s

Office was working with the Skamania Prosecuting Attorney’s Office on Eaglespeaker’s rape case

or had contacted the Skamania Prosecuting Attorney’s Office prior to Eaglespeaker’s trial about

J.R.’s 2011 false rape allegation in Oregon.




13
   Although we do not consider Exhibits A through D in the context of newly discovered evidence
entitling a petitioner to a new trial as discussed above, we do consider Exhibits A through D, as
well as other evidence Eaglespeaker relies on, for his Brady arguments. This is because the
standard of determining materiality is different in the context of Brady than in the context of newly
discovered evidence. Mullen, 171 Wn.2d at 905-06.


                                                 12
No. 51915-1-II



       Also, Eaglespeaker provides no support for his claim that the Skamania County Sheriff’s

Office (the police working Eaglespeaker’s rape case) had knowledge that J.R. made a false rape

allegation in 2011 in Oregon. Similarly, Eaglespeaker provides no support for imputing any

knowledge DSHS or the State Attorney General’s Office may have had in a dependency

proceeding onto the Skamania County prosecutor prosecuting his rape case.

               b.      Constructive knowledge

       Eaglespeaker argues that the prosecutor “likely had constructive knowledge” of J.R.’s 2011

false rape allegation in Oregon because “it is possible, albeit unlikely, that the report from the

Beaverton Police Department had been transmitted to Skamania County.” PRP at 16. Therefore,

Eaglespeaker argues, constructive knowledge of the information in the Beaverton, Oregon Police

Department report should be imputed to Skamania County prosecutor prosecuting his rape case.

Eaglespeaker also argues that “exculpatory and impeaching material in the hands of the Attorney

General’s Office or the Department of Social and Health Services should be imputed to the

Skamania County Prosecuting Attorney’s Office for purposes of this case.” Second Statement of

Supp. Authorities at 1.

       “Though Brady obligations can extend to individuals beyond prosecutors and police, at

some point the connection between the nondisclosure and the State becomes too remote for the

underlying rationale of Brady to apply.” Mullen, 171 Wn.2d at 901 (internal citation omitted).

Whether an individual is a state actor for purposes of Brady is a fact-specific inquiry. Id. at 901-

02.

       Here, for his claim that the prosecutor had constructive knowledge of J.R.’s 2011 false rape

allegation in Oregon, Eaglespeaker relies on a 2013 Beaverton, Oregon Police Department report

in which an Oregon detective writes that he watched footage of a Skamania County dependency


                                                13
No. 51915-1-II



proceeding in which “an attorney” questioned J.R. about her 2011 false rape allegation. PRP Ex.

D at 1.14 However, this report contains no information regarding who the attorney was or who the

attorney represented. And though the Oregon detective describes the hearing as a dependency

proceeding, the detective also refers to the hearing as a “child custody hearing.” PRP Ex. D at 1.

Thus, this report alone does not contain sufficient facts to determine whether the attorney

referenced in the report was a State actor for purposes of Brady. And this report fails to show that

the Beaverton, Oregon Police Department was acting on behalf of the Skamania Prosecutor’s

Office.     Thus, Eaglespeaker fails to show that the Skamania prosecutor had constructive

knowledge of J.R.’s 2011 false rape allegation based on the 2013 Beaverton, Oregon Police

Department report.

          Eaglespeaker attempts to suggest that J.R. delayed making the rape allegations against him

because she was worried that her drug use would lead the police to call CPS. He contends that

this is evidence of the “relationship between law enforcement and Child Protective Services,” and

the prosecution’s imputed knowledge of her prior false rape allegation. Second Statement of Add’l

Authority at 1-2. But the fact that the police could call CPS does not show that the prosecution

knew about her prior rape allegation or that the police or CPS was acting on the prosecutor’s behalf

in Eaglespeaker’s rape case. The connection between the police’s ability to call CPS is too remote

for the underlying rationale of Brady to apply.




14
   We note that the Exhibit D of the PRP does not contain page numbers. For our purposes we
will number the pages of Exhibit D 1-3 starting with the first page of the exhibit.


                                                  14
No. 51915-1-II



       Eaglespeaker relies on evidence of emails and an exemptions list between DSHS and the

Skamania County Sheriff’s Office. These emails are related to incident 13-02315. The Skamania

County Sheriff’s Office Master Call Table shows that incident 13-02315 relates to the foster parent

of J.R.’s children having marijuana in their car. But the emails do not relate to Eaglespeaker or to

J.R.’s 2011 false rape allegation.

       Eaglespeaker also relies on a copy of a Skamania County Prosecutor’s Office child abuse

report related to J.R. But this report relates to a child abuse incident that occurred on May 31,

2013, after the dependency hearing on April 10, 2013 and after Eaglespeaker’s trial from May 13

to May 15, 2013.

       Eaglespeaker cites to Davila to argue that the prosecutor here had constructive knowledge

of J.R.’s 2011 false rape allegation. PRP at 16. However, Davila is readily distinguishable.

       In Davila, the State failed to disclose that a forensic scientist who had worked on the

defendant’s case had been fired for incompetence. 184 Wn.2d at 60. The court held that this

knowledge could be imputed on the prosecutor who had worked with the forensic scientist on the

defendant’s case because the state crime lab is an arm of the State. Davila, 184 Wn.2d at 71. The

Davila court never held that knowledge in the possession of an out of state law enforcement agency

could be imputed to a prosecutor in a different state. And here, there is no evidence that the

Beaverton, Oregon Police Department; the State Attorney General’s Office; or DSHS were

working with the Skamania County Prosecuting Attorney’s Office, or working on its behalf, in

investigating Eaglespeaker’s rape case.




                                                15
No. 51915-1-II



               c.      Actual knowledge

       Eaglespeaker appears to argue that the Skamania County Prosecutor’s Office had actual

knowledge of J.R.’s 2011 false rape allegation. Eaglespeaker argues that because the prosecutor

“‘actually stepped into the dependency hearing’” he knew about the 2011 false rape allegation.

Second Statement of Add’l Authority at 2 (quoting VRP (April 22, 2013) at 5).

       But Eaglespeaker fails to support his claim that the prosecutor had actual knowledge of the

2011 false rape allegation.    Eaglespeaker does not show when during the proceedings the

prosecutor was present or that the prosecutor was present for the entire hearing. Also, the

prosecutor stated at a motion in limine hearing during Eaglespeaker’s rape case that he understood

the facts at the hearing involved

       a domestic violence incident where I think, [defense counsel] can correct me if I’m
       wrong, but my understanding is [J.R.] was basically covering for the perpetrator.
       She was basically feeling like she—sort of acting in a way like a stereotypical or a
       kind of the domestic violence dynamic that we talk about.

VRP (April 22, 2013) at 9. Additionally, the prosecutor stated that hypothetically, “It might be

different if there was a prior admission to perjury where she accused someone of an incident like

this and then later said that she lied about it.” VRP (April 22, 2013) at 10. This shows that the

prosecutor did not know about J.R.’s 2011 false rape allegation. Thus, Eaglespeaker has provided

no evidence that the prosecutor had actual knowledge of J.R.’s 2011 false rape allegation.

               d.      Defense knowledge

       There is no suppression under Brady if the undisclosed information was available through

the defendant’s exercise of reasonable due diligence. Mullen, 171 Wn.2d at 903. Eaglespeaker’s

defense counsel was present in the courtroom during the April 2013 dependency hearing in which

J.R. allegedly admitted to making the 2011 false rape allegation. The dependency hearing occurred



                                               16
No. 51915-1-II



a month before Eaglespeaker’s trial began. Thus, Eaglespeaker’s counsel likely had knowledge

of the potentially exculpatory evidence. At the very least, had the defense exercised reasonable

due diligence, Eaglespeaker could have learned that J.R.’s testimony was potentially exculpatory

evidence.

       3.     Alleged Exculpatory Witness

       There is no suppression under Brady if the undisclosed information was available through

the defendant’s exercise of due diligence. Mullen, 171 Wn.2d at 903. As discussed above, through

reasonable due diligence, Eaglespeaker could have learned that Helm was a potential defense

witness because Helm had stopped by J.R.’s apartment and observed Eaglespeaker and J.R.

together on J.R.’s couch kissing the evening the rape occurred. Furthermore, evidence of J.R. and

Eaglespeaker kissing on the couch does not demonstrate that Eaglespeaker did not rape J.R. later.

Thus, Eaglespeaker’s challenge based on Helm fails.

       Because Eaglespeaker fails to show that the prosecutor had any knowledge, imputed,

constructive, or actual, of J.R.’s 2011 false rape allegation and because Eaglespeaker could have

discovered both evidence of the 2011 false rape allegation and Helm with the exercise of

reasonable due diligence, Eaglespeaker fails to show that the prosecutor violated Brady by

suppressing evidence favorable to him. Therefore, Eaglespeaker’s challenge based on Brady fails.




                                               17
No. 51915-1-II



                                         CONCLUSION

        Eaglespeaker fails to show that he is entitled to a new trial based on the newly discovered

evidence that J.R. had falsified a rape allegation in Oregon in 2011 and that Helm had observed

Eaglespeaker and J.R. kissing hours before the rape. Eaglespeaker also fails to show that the

prosecuting attorney violated his Brady obligations. Therefore, we deny Eaglespeakers PRP.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     Lee, C.J.
 We concur:



 Worswick, J.




 Cruser, J.




                                                18
