Opinion
No. 22320-5-III
Filed: December 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No. 03-1-00202-3. Judgment or order under review. Date filed: 08/22/2003. Judge signing: Hon. Carolyn A. Brown.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Terry Jay Bloor, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
Any purposeful and unjustified governmental intrusion into a defendant's private communications is presumptively prejudicial. Kenneth Crary says the State opened his mail, including mail from his attorney. The trial court assumed that Mr. Crary was correct. So the court made no findings on the circumstances surrounding the opening of his mail. Accordingly, we are unable to determine, based on this record, whether prejudice should be presumed from this intrusion. We therefore remand for further proceedings.
FACTS
The State charged Mr. Crary with unlawful possession of a controlled substance. Mr. Crary claimed his legal mail was opened outside his presence on four separate occasions while in the Benton County Correction Facility awaiting trial. He moved to dismiss the prosecution based on this.
The court assumed for its decision that Mr. Crary's legal mail had been opened. It concluded, nonetheless, that Mr. Crary suffered no prejudice as a result. Mr. Crary's attorney reiterated that Mr. Crary was uncomfortable with his attorney. The court concluded that new counsel was not warranted. Later, Mr. Crary again urged that he had lost confidence in his counsel. And the court again said it would not remove defense counsel from the case. Mr. Crary agreed to be tried by the judge on stipulated facts. The court found him guilty.
DISCUSSION
Mr. Crary says his legal mail was opened by the jail staff outside his presence on four separate occasions. And despite this, his lawyer refused to communicate with him other than in writing.
We review the denial of a motion to dismiss a criminal prosecution under CrR 8.3(b) for abuse of discretion. State v. Garza, 99 Wn. App. 291, 295, 994 P.2d 868 (2000); State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997). The defendant must show by a preponderance of the evidence (1) that there was misconduct or arbitrary action by the government and (2) that the government's actions prejudiced the defendant's right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003); Garza, 99 Wn. App. at 295.
CrR 8.3(b) requires a showing of government misconduct or arbitrary action. Garza, 99 Wn. App. at 295.
Here, the trial judge assumed for purposes of Mr. Crary's motion that his legal mail had been opened: `I'm accepting for the purposes of his position, taking that evidence in his favor, that his mail was opened outside his presence.' Report of Proceedings (RP) (May 23, 2003) at 35. The court then did accept that there had been misconduct. Id. at 34-35. We have, then, no choice but to make the same assumption.
The fact of any government intrusion into the defendant's private communications with his attorney will not automatically be deemed a per se prejudicial violation of the defendant's Sixth Amendment right to counsel. Garza, 99 Wn. App. at 298; Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). Prejudice is presumed where the government's actions are purposeful and without justification. Garza, 99 Wn. App. at 300-01.
Mr. Crary argues both presumed prejudice and actual prejudice. But since there are no findings on the role of the State, or absence of any role, in either opening or reviewing Mr. Crary's mail, review here is impossible.
We then remand for fact finding on Mr. Crary's allegations that his mail was opened, to include the circumstances, and for exercise of the trial court's discretion as to what, if anything, should be done about it. Id.
We remand for further proceedings in accordance with this opinion.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KURTZ, J. and BROWN, J., concur.