Fl LE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 88422-6
)
v. ) EnBanc
)
JORGE NAHUN PENA FUENTES, )
) Filed _ _;_F-=EB"'-,-""-0_,_8_,_20 .14..___
.. .
Petitioner. )
___________________________)
OWENS, J. -- The Sixth Amendment guarantees a criminal defendant the
right to assistance of counsel, which includes the right to confer privately with that
counsel. 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). We presume that such eavesdropping results in prejudice
to the defendant and have vacated criminal convictions when there was no way to
isolate the prejudice to the defendant from such "shocking and unpardonable
conduct." ld.
State v. Pena Fuentes
No. 88422-6
In this case, we are asked whether a conviction must be vacated even if it were
shown that the eavesdropping did not result in any prejudice to the defendant-in
other words, whether the presumption of prejudice from such eavesdropping is
rebuttable. That question is crucial in this case because here, the police detective
eavesdropped on attorney-client conversations after the trial was complete and the
jury had found the defendant guilty. Thus, while the conduct was unconscionable,
there was no way for the eavesdropping to have any effect on the trial itself. Further,
the prosecutor submitted a declaration stating that the detective on the case never
communicated any information about the attorney-client conversations to the
prosecution.
In light of these circumstances, we hold that eavesdropping is presumed to
cause prejudice to the defendant unless the State can prove beyond a reasonable doubt
that the eavesdropping did not result in any such prejudice. In this case, the record
does not provide enough information to make this determination, and we remand for
additional discovery.
FACTS
While the most significant issue in this case involves the detective
eavesdropping on conversations between Jorge Nahun Pefia Fuentes and his attorney,
there are also legal challenges to four other rulings: (1) the trial judge's decision
regarding discovery related to the eavesdropping, (2) the trial judge's evidentiary
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ruling related to a letter by Pefia Fuentes's daughter (who is also the victim's half
sister), (3) the trial judge's ruling that Pefia Fuentes's convictions for both rape of a
child and child molestation violated his double jeopardy rights, and (4) the Court of
Appeals' denial ofPefia Fuentes's motion to supplement the record. Below is a
summary of the basic facts in this case, as well as the facts related to each of the
various legal issues.
J.B. Reports Abuse
In November 2008, ninth grader J.B. told her school counselor that her
stepfather, Pefia Fuentes, had touched her inappropriately when she was younger. The
counselor immediately contacted Child Protective Services and J.B.'s parents. The
police investigated, and Pefia Fuentes was eventually charged with first degree rape of
a child, three counts of first degree child molestation, and three counts of second
degree child molestation.
Overview of the Trial
Pefia Fuentes was put on trial in October 2010. Because of the ongoing nature
of the abuse and the limitations of J.B.'s memories from childhood, the prosecution
did not know the specific dates of particular incidents of abuse. However, J.B. could
recall the location of abuse, and because the family had moved somewhat frequently,
the different incidents of abuse could be connected with specific time periods based
on where the family was living when the abuse occurred. Therefore, the prosecution
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No. 88422-6
based its charges on conduct occurring during a certain time period, which it
determined based on where the family was living at the time:
• Count II was based on abuse alleged to have occurred while the family was
living at an apartment in Bellevue, between November 26, 2000 and June 1,
2003.
• Counts I, III, and IV were based on abuse alleged to have occurred while the
family was living at a condo between January 1, 2003 and November 25,
2005.
• Counts V, VI, and VII were based on abuse alleged to have occurred after
Pefia Fuentes and J.B. 'smother had divorced, while J.B. was living with her
mother in Sammamish and Pefia Fuentes was living in Redmond between
November 26, 2005 and November 25, 2007.
At trial, J.B. testified about many incidents of inappropriate touching,
beginning when she was in first grade. Her memories of the early abuse at the
Bellevue apartment (related to count II) were "[n]ot very good," 2 Verbatim Report of
Proceedings (VRP) at 322, and the jury ultimately found Pefia Fuentes not guilty on
count II.
J.B.'s memories of later abuse at the condo (related to counts I, III, and IV)
were much clearer. She testified in detail about repeated incidents ofPefia Fuentes
abusing her at the condo. !d. at 329-30. J.B. also testified about two specific and
particularly severe incidents involving penetration that occurred while they were
living at the condo. The jury ultimately found Pefia Fuentes guilty on counts I, III,
and IV.
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J.B. indicated that the abuse was less frequent after Pefia Fuentes and her
mother divorced. During this time, lB. testified that the abuse occurred at Pefia
Fuentes's home in Redmond (related to counts V, VI, and VII). The jury was unable
to reach unanimity on the remaining charges.
No witnesses directly corroborated or refuted J.B.'s testimony. Some of the
State's witnesses, including lB.'s grandmother, testified that lB. sometimes
expressed disco_mfort about having to go to Pefia Fuentes's house, and two of lB.'s
friends testified that she had alluded to the abuse in previous years.
Pefia Fuentes himself did not testify at trial, but the original police interview of
Pefia Fuentes was submitted as evidence. During that interview, he denied most of the
abuse but acknowledged a few incidents that occurred while he was roughhousing
with J.B.
L.P. 's Testimony at Trial
Most of the issues now in front of us arise out of a series of events that began
with a letter written by J.B. 'shalf sister, L.P. L.P. is about four and a half years
younger than lB. and has the same mother, but is the biological daughter ofPefia
Fuentes. At trial, the defense introduced a letter to the prosecutor that L.P. had
written when she was 11 years old. In the letter, L.P. indicated that she believed lB.
was lying at the behest of their mother based on a conversation she had overheard
between them. In her deposition, L.P. indicated that she could not recall whose idea
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the letter was, and that she could no longer remember what she had overheard her
mother say to J.B.
The trial judge allowed the jury to consider the letter in order to assess L.P.' s
credibility-i.e., for impeachment purposes only-but not for the truth of the matter
asserted within the letter. At trial, L.P. again testified that she could not remember the
conversation between her mother and J .B.
Double Jeopardy Ruling
After his conviction, Pefia Fuentes filed a motion for a new trial, arguing that
his convictions for first degree rape of a child (count I) and first degree child
molestation (counts III and IV) violated his double jeopardy rights. Pefia Fuentes
argued that the jury could have found him guilty of rape of a child and child
molestation for the same act because the court did not instruct the jury that those
occasions had to be separate and distinct from the act alleged in count I. The trial
judge agreed and granted a new trial on count I. He then ruled that count I could not
proceed to trial because of the police misconduct discussed below, so he dismissed it
with prejudice.
New Video ofL.P.
After Pefia Fuentes's conviction and while the motion for the new trial was
pending, the defendant's current wife, Mihaela Pefia, 1 and her brother, Corneliu
1
To avoid confusion, we refer to Mihaela Pefia by her first name in this opinion.
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State v. Peiia Fuentes
No. 88422-6
Hertog, decided to contact L.P. about her testimony. Hertog discovered through
Facebook where L.P. had recently begun attending church and approached her there.
Hertog and L.P. dispute the nature of the ensuing conversation. Hertog contends that
they simply explained to L.P. that her trial testimony had been unclear and asked if
she would be willing to clarify what she remembered. According to Hertog, L.P.
agreed to clarify her testimony on camera "without any hesitation," and when Mihaela
asked L.P. if she felt threatened or intimidated, L.P. answered no. Clerk's Papers
(CP) at 71.
On the video, Mihaela asked, "And what is it that you can testify to? And what
have you told me before?" and L.P. responded, "That all the accusations I made to my
dad are not true and that I heard my mom and my sister plotting to accuse my dad of
sexual assault." Id. at 146.
However, L.P. 's version of the events surrounding the videotaping differs
significantly from Hertog's. L.P. indicates that she panicked when Mihaela and
Hertog showed up at her church and that she "had never felt more scared in [her] life."
Id. at 150. She states that once she saw they had a video camera, she knew Mihaela
and Hertog would not leave unless she made a video saying what they wanted her to
say. According to L.P., Mihaela told L.P. how to answer the questions on the video.
On camera, L.P. answered accordingly, but later said, "I only did that because I was
scared ... I knew that all the things I had said in that video were lies." !d. at 151.
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Pefia Fuentes then filed a supplemental motion for a new trial based on (1) the
judge's decision to disallow L.P.'s letter at trial and (2) the "newly discovered
evidence" of the video of L.P. recanting her trial testimony. !d. at 58. The trial judge
denied the motion. On the first issue, he ruled that the decision to exclude L.P. 's letter
was within the court's discretion. On the second issue, the trial judge noted that it
came down to credibility. He found that L.P. was already impeached at trial and that
the video would not have changed the results.
A Detective Listens to Private Attorney-Client Conversations
After learning ofMihaela and Hertog's visit to L.P. at her church in mid-
December 2010, the prosecutor and the police decided to investigate possible witness
tampering. The prosecutor asked Detective Casey Johnson to listen to Pefia Fuentes's
phone calls from jail. On January 5, 2011, Detective Johnson informed the prosecutor
that he had listened to all of Pefia Fuentes's phone calls, including six conversations
between Pefia Fuentes and his attorney. The prosecutor immediately informed
Detective Johnson that he should not listen to any more calls and that he should not
disclose the content of the conversations between Pefia Fuentes and his attorney to
anyone. The prosecutor also requested that the detective be removed from the witness
tampering investigation. The prosecutor then told defense counsel about the
eavesdropping. The prosecutor later submitted a declaration stating that Detective
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No. 88422-6
Johnson did not disclose the content of the phone calls between Pefia Fuentes and his
attorney to him.
Because of the eavesdropping, Pefia Fuentes moved to dismiss all charges with
prejudice. The trial judge agreed that the police misconduct was "egregious." 3 VRP
at 593. However, he denied the motion to dismiss, concluding that the police
misconduct did not affect either the trial-which had concluded prior to the
eavesdropping-or the motion for a new trial. Pefia Fuentes moved for discovery of
all police reports and evidence gathered by Detective Johnson, arguing that he had
previously requested such information but that the prosecutor had not provided it. He
also moved to dismiss all charges because the State withheld such evidence. The
judge denied the motion for discovery because he had already ruled on the underlying
motion.
Motion To Supplement the Record on Appeal
Pefia Fuentes appealed the trial court's ruling that the police misconduct did not
affect the trial, as well as its rulings on discovery and excluded evidence. The State
cross appealed the trial judge's ruling on the double jeopardy violation.
At the Court of Appeals, Pefia Fuentes filed a supplemental designation of
clerk's papers, which included a formal complaint filed with the King County
Sheriffs Department regarding Detective Johnson's actions, as well as the sheriffs
department's response. Upon a motion from the State, the Court of Appeals struck the
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No. 88422-6
materials because (1) Pefia Fuentes failed to address RAP 9.11, (2) the additional
evidence he submitted did not appear likely to change the decision being reviewed,
and (3) it would not be inequitable to decide the case on the existing record.
The Court of Appeals affirmed all of the trial court's rulings except the double
jeopardy ruling and remanded for a longer sentence. State v. Pena Fuentes, No.
66708-4-I, slip op. (unpublished portion) at 18 (Wash. Ct. App. Jan. 14, 2013). Pefia
Fuentes petitioned for review and this court granted review. State v. Pena Fuentes,
177 Wn.2d 1008, 302 P.3d 180 (2013).
ISSUES
1. Is the presumption of prejudice resulting from the State eavesdropping on
attorney-client conversations rebuttable? If so, what standard of proof is required?
2. Did the trial judge err when he denied discovery of police reports related to
the eavesdropping?
3. Did the trial judge err when he allowed admission ofL.P.'s letter only for
witness impeachment purposes?
4. Did Pefia Fuentes's convictions for first degree rape of a child and first
degree child molestation violate double jeopardy?
5. Did the Court of Appeals correctly strike Pefia Fuentes's supplemental
clerk's papers?
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No. 88422-6
ANALYSIS
A. The Presumption ofPrejudice Resulting from the State Eavesdropping on
Attorney-Client Conversations Can Be Rebutted If the State Shows the Absence
ofPrejudice Beyond a Reasonable Doubt
A defendant's constitutional right to the assistance of counsel unquestionably
includes the right to confer privately with his or her attorney. Cory, 62 Wn.2d at 373-
74. In Cory, the seminal Washington case on this issue, this court dismissed a
defendant's charges with prejudice because of an appalling decision by the sheriff to
install a microphone in the jail's conference room and eavesdrop on conversations
between the defendant and his attorney during trial. !d. at 372, 378.
The Cory court presumed prejudice arising from the eavesdropping that
occurred during trial. !d. at 377 & n.3 ("we must assume that information gained by
the sheriff was transmitted to the prosecutor" and therefore "[t]here is no way to
isolate the prejudice resulting from an eavesdropping activity, such as this").
However, the court did not directly address whether all eavesdropping is per se
prejudicial or if the presumption of prejudice is rebuttable.
The United States Supreme Court has expressly rejected a per se prejudice rule
for such eavesdropping, holding that when an eavesdropper did not communicate the
topic of the overheard conversations and thereby create "at least a realistic possibility
of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment
violation." Weatherfordv. Bursey, 429 U.S. 545, 557-58,97 S. Ct. 837, 51 L. Ed. 2d
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30 (1977) (reviewing a case where an undercover agent sat in on a meeting between
defendant and counsel but did not communicate anything about the meeting to anyone
else). The United States Supreme Court's reasoning is sound, and we agree with it.
While eavesdropping on attorney-client conversations is an egregious violation of a
defendant's constitutional rights and cannot be permitted, there are rare circumstances
where there is no possibility of prejudice to the defendant. We do not believe the
extreme remedy of dismissing the charges is required when there is no possibility of
prejudice. To account for those rare circumstances where there is no possibility of
prejudice to the defendant, we hold that the presumption of prejudice arising from
such eavesdropping is rebuttable.
We now turn to the question of the burden of proof in such a situation and hold
that the State has the burden to show beyond a reasonable doubt that the defendant
was not prejudiced. State v. Granacki, 90 Wn. App. 598, 602 n.3, 959 P.2d 667
(1998) ("A trial court's decision to dismiss an action based on State v. Cory and under
CrR 8.3(b) is reviewed for abuse of the court's discretion. State v. Starrish, 86 Wn.2d
200,209, 544 P.2d 1 (1975). Even under CrR 8.3(b), the burden is on the State to
prove beyond a reasonable doubt that there was no prejudice to the defendant."). The
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.
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The State argues that the defendant should have the burden to show prejudice
when the information is not communicated to the prosecutor. We disagree. The State
is the party that improperly intruded on attorney-client conversations and it must
prove that its wrongful actions did not result in prejudice to the defendant. Further,
the defendant is hardly in a position to show prejudice when only the State knows
what was done with the information gleaned from the eavesdropping. The proper
standard the trial court must apply is proof beyond a reasonable doubt with the burden
on the State.
Here, the record is unclear as to what standard the trial judge applied. When
evaluating the eavesdropping, the trial judge commented that it was egregious
misconduct but then stated, "I do not believe it affected the trial and I'm not satisfied
that it will affect, sufficiently, well, that it has affected the motion for a new trial. I'm
going to deny the motion to dismiss on that basis." 3 VRP at 593-94. On this record,
there is no way to be sure of the standard applied by the trial judge. Therefore, we
remand for the trial court to consider whether the State has proved the absence of
prejudice beyond a reasonable doubt.
B. Additional Discovery Is Needed To Determine Whether the Eavesdropping
Resulted in Prejudice to Pena Fuentes
The prosecutor argues that Pefia Fuentes cannot show prejudice resulting from
the eavesdropping because (1) the eavesdropping occurred after trial, so the actual
trial could not have been affected, and (2) the prosecutor never had any knowledge of
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No. 88422-6
the content of the conversations, so the posttrial motions could not have been affected.
Pefia Fuentes counters that the overheard conversations included discussions
regarding the posttrial motions and that since Detective Johnson was engaged in an
investigation related to the posttrial motions at the same time that he had access to the
tapes of the attorney-client conversations, his investigation may have been aided by
his eavesdropping. Because the State holds all of the information regarding the
eavesdropping and any results thereof, Pefia Fuentes cannot make any showing of
prejudice (or rebut the State's arguments regarding lack of prejudice) without
discovery of information related to the eavesdropping.
Under CrR 4.7(e)(1), a court may require disclosure of any relevant
information that is both material and reasonable. Here, the trial court's decision
rested entirely on the State's representations as to the prosecutor's knowledge of the
content of the eavesdropped conversation. Notably, however, the State made no
representations as to the date that Detective Johnson eavesdropped on the
conversations or whether he continued his investigation after that date-the State only
submitted evidence showing that Detective Johnson discontinued his participation in
the investigation after he disclosed the eavesdropping to the prosecutor on January 5,
2011. The key pieces of evidence at issue in the posttrial motions were the videotape
of L.P. and her later declaration to the prosecutor stating that everything in the
videotape was a lie. The declaration was apparently facilitated by Detective Johnson,
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No. 88422-6
and it was taken on December 28, 201 0-two days after the tapes were delivered to
him. But we do not lmow whether Detective Johnson listened to the tapes while
actively seeking evidence related to the posttrial motions. That is where the
possibility of prejudice arises because regardless of whether the prosecutor himself
knew of the content of the conversations, he may have relied on evidence gathered by
Detective Johnson as part of an investigation aided by the eavesdropping.
On this record, there is no way to lmow whether Detective Johnson's
investigation and actions were affected by what he may have overheard when
eavesdropping. The State provides no evidence regarding Detective Johnson's
investigation; it contends only that the information did not pass directly from
Detective Johnson to the prosecutor. In this situation, Pefta Fuentes must be allowed
discovery in order to determine whether Detective Johnson continued to investigate
after eavesdropping. Such evidence is crucial to the determination of whether Pefta
Fuentes was prejudiced. Because such discovery is necessary to determine prejudice,
we reverse the trial judge's decision to deny discovery and remand for further
proceedings.
C. The Court ofAppeals Properly Held That the Defense Failed To Object at Trial
to the Decision To Limit Consideration ofL.P. 's Letter to Impeachment
At trial, the judge allowed L.P. 's letter to be admitted solely for purposes of
assessing L.P. 's credibility. He instructed the jury not to consider the letter for the
truth of the matter asserted within. Pefta Fuentes now contends that it was legal error
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No. 88422-6
for the trial judge to admit the letter only for impeachment purposes, and not as a
recorded recollection under ER 803(a)(5). We affirm the trial judge's decision to
limit consideration ofL.P.'s letter because the defense (1) failed to properly object at
trial and (2) did not properly bring an ineffective assistance of counsel claim for the
failure to object.
An error of law is grounds for a new trial if the defendant objected at the time.
CrR 7.5(a)(6). The Court of Appeals correctly noted that Pefia Fuentes failed to
object at trial. In response, Pefia Fuentes contends that the failure to object at trial
constituted ineffective assistance of counsel. However, as the Court of Appeals noted,
Pefia Fuentes failed to assign error based on ineffective assistance of counsel in his
appeal and further failed to provide any analysis of the test for ineffective assistance
of counsel. Pefia Fuentes now contends that the decision to not assign error was made
deliberately by appellate counsel out of deference to the trial attorney, who had cancer
at the time of the appeal. Nonetheless, he still fails to provide any analysis applying
the test for ineffective assistance of counsel. We affirm both the trial court and the
Court of Appeals on this issue.
D. Pefia Fuentes's Convictions Did Not Violate Double Jeopardy
The jury convicted Pefia Fuentes of first degree rape of a child (count I) and
two counts of first degree child molestation (counts Ill and IV) for conduct occurring
between January 1, 2003 and November 25, 2005. The jury instructions for the child
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No. 88422-6
molestation charges (counts III and IV) stated that the State must prove that the
conduct occurred on separate and distinct occasions. The instructions for the child
rape charge (count I) did not include an instruction that the conduct must have
occurred on an occasion separate and distinct from the child molestation charges.
Pefia Fuentes moved for a new trial, arguing that the jury could have convicted him of
child rape based on one of the same incidents that formed the basis for the child
molestation convictions. The trial judge agreed and granted a new trial on the child
rape charge. 2 The trial judge ruled that there was a possibility that the jurors could
have convicted Pefia Fuentes of first degree rape of a child based on one of the same
incidents that formed the basis for his conviction for first degree child molestation.
Given the way the jury was instructed, if this were the case, the conviction would
2
The trial judge granted a new trial on the child rape charge, but then ordered that that
charge be dismissed with prejudice because of the police eavesdropping. The trial judge
essentially ruled that while the eavesdropping did not prejudice the defendant as to the
charges for which he had already been tried, it did prejudice the defendant with regard to
a new trial.
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No. 88422-6
have violated Pefia Fuentes's double jeopardy rights. 3 The Court of Appeals reversed
that ruling, Pefia Fuentes, No. 66708-4-I, slip op. (unpublished portion) at 15, and
Pefia Fuentes challenges that reversal.
A "defendant's double jeopardy rights are violated if he or she is convicted of
offenses that are identical both in fact and in law." State v. Calle, 125 Wn.2d 769,
777, 888 P.2d 155 (1995) (citing State v. Johnson, 96 Wn.2d 926, 933, 639 P.2d 1332
(1982)). "However, if each offense, as charged, includes elements not included in the
other, the offenses are different and multiple convictions can stand." I d. (citing In re
Pers. Restraint ofFletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989)). Of course, if
each count arises from a separate and distinct act, the defendant is not potentially
exposed to multiple punishments for a single act. See State v. Mutch, 171 Wn.2d 646,
661-63, 254 P.3d 803 (2011). On review, the court may consider insufficient
instructions "in light of the full record" to determine if the instructions "actually
3
In this case, the jury was instructed that sexual contact for the purposes of child
molestation included "any touching of the sexual or other intimate parts of a person done
for the purpose of gratifying sexual desires of either party or a third party." CP at 45
(Instruction 20). Sexual intercourse for the purposes of rape included "any act of sexual
contact between persons involving the sex organs of one person and the mouth or anus of
another." Id. at 34 (Instruction 9). These two elements are substantially identical. These
instructions appear to be drawn on pattern jury instructions drafted by the Washington
Supreme Court Committee on Jury Instructions. See 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 45.01, at 831, 45.07, at 839 (3d
ed. 2008). We note that the committee on jury instructions recommended not using both
definitions in a case where rape was charged, perhaps to avoid the situation we have here.
I d.
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No. 88422-6
effected a double jeopardy error." I d. at 664. This court has refused to find error
when it is "manifestly apparent to the jury that each count represent[ s] a separate act."
I d. at 665-66.
In Mutch, the defendant was convicted of five separate counts of rape based on
five acts that occurred with the same victim over the course of one night and the
following morning. Id. at 655. A detective testified that the defendant admitted to
engaging in multiple sex acts, and the defendant did not argue insufficiency of
evidence as to the number of alleged criminal acts or question the victim's credibility
regarding the number of rapes. Id. at 665. This court found that the jury knew that
each count represented a separate act and that no double jeopardy violation occurred.
I d. at 665-66. In another case, this court found that a "pattern of molestation and
rape" that spanned several years was sufficient to support multiple counts of child
molestation and child rape. State v. French, 157 Wn.2d 593, 612, 141 P.3d 54 (2006).
In this case, the record reveals that the jury instructions did not actually effect a
double jeopardy violation. It is manifestly apparent that the convictions were based
on separate acts because the prosecution made a point to clearly distinguish between
the acts that would constitute rape of a child and those that would constitute child
molestation. At trial, the defendant did not challenge the number of incidents or
whether they overlapped, but rather he chose the strategy of attacking J.B.'s
credibility.
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No. 88422-6
In the prosecutor's closing argument, he addressed count I (child rape) and
identified the two specific acts that occurred at the condo that supported a child rape
conviction. 3 VRP at 553 (describing alleged conduct in detail). The prosecutor then
addressed counts III and IV, which involved child molestation that occurred during
the same time period as count I. Id. at 553-54 (describing different alleged conduct in
detail). The prosecutor clearly used "rape" and "child molestation" to describe
separate and distinct acts. He divided Pefia Fuentes's behaviors into two categories-
the acts involving penetration, which constituted rape, and the other inappropriate
acts, which constituted molestation. And again, the defendant did not challenge the
number of acts or whether the acts overlapped; he challenged only J .B.'s believability.
The jury ultimately believed J.B. 's testimony regarding the various acts that occurred
at the condo.
On this record, it is clear that the rape count was exclusively based on the two
specific acts of penetration, and the molestation counts were exclusively based on the
inappropriate behavior other than those two acts of penetration. Because of the clarity
in the prosecutor's closing argument, we believe it is "manifestly apparent" that the
jury convicted Pefia Fuentes based on separate and distinct acts. We affirm the Court
of Appeals' decision (albeit for different reasoning) to reverse the trial court's double
jeopardy ruling.
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No. 88422-6
E. The Court ofAppeals Correctly Struck the Supplemental Clerk's Papers
Pefia Fuentes argues that the Court of Appeals erroneously struck the
supplemental clerk's papers he filed, which included the complaint he submitted to
the sheriffs department regarding Detective Johnson's conduct and the response. We
affirm the Court of Appeals' decision to strike the supplemental clerk's papers
because (1) it was not inequitable to decide the case without the documents and (2) it
is unlikely the documents would have changed the decision.
RAP 9.11 sets out the six requirements for when additional evidence can be
considered on review. Pefia Fuentes did not address RAP 9.11 in his brief to the
Court of Appeals. In his briefs to this court he addresses only two of the RAP 9.11
requirements, contending that "the additional evidence would probably change the
decision being reviewed," and that "it would be inequitable to decide the case solely
on the evidence already taken in the trial court." RAP 9.11(a)(2), (6). Pefia Fuentes
reasons that the most compelling basis for his charges to be dismissed is the failure of
the sheriffs department to acknowledge that misconduct occurred, and thus the
complaint he filed and the sheriffs department's response are essential to the record.
The Court of Appeals was correct to strike the additional evidence. First, Pefia
Fuentes still fails to address the other four requirements of RAP 9 .11. Second, the
sheriffs department's response is unnecessary to the legal analysis in this case, where
the court must determine the consequences of the State's actions in relation to Pefia
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State v. Pena Fuentes
No. 88422-6
Fuentes's criminal case-not whether there are consequences to Detective Johnson
personally. We affirm the Court of Appeals on this issue.
CONCLUSION
We are appalled that we must again reiterate that the State cannot eavesdrop on
private conversations between a defendant and counsel. We recognize that the
prosecutor acted promptly and ethically to remedy and disclose the violation once it
was discovered by him. Nonetheless, except in rare circumstances, we will vacate
convictions when such unconstitutional actions have been taken. In this case, we
reverse and remand with instructions that the State has the burden of proving beyond a
reasonable doubt that no prejudice occurred. On remand, Pefia Fuentes must be
allowed discovery related to the eavesdropping to allow him to respond to the State's
arguments regarding prejudice. On all other issues we affirm the Court of Appeals.
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State v. Pefia Fuentes
No. 88422-6
WE CONCUR:
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