State Of Washington, V. Adam B. Myers

533 P.3d 451

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83588-2-I Respondent, DIVISION ONE v. ORDER DENYING MOTION ADAM BRANTLY MYERS, FOR RECONSIDERATION AND WITHDRAWING AND Appellant. SUBSTITUTING OPINION

Respondent filed a motion for reconsideration on June 26, 2023. A panel

of the court called for an answer on June 28, 2023. Appellant filed an answer to

the motion on July 13, 2023. After review of the motion and answer, a panel of

this court has determined that the motion for reconsideration should be denied.

The panel has also determined that the opinion filed on June 5, 2023 should be

withdrawn and a substitute opinion filed.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and it is further

ORDERED that the opinion filed on June 5, 2023 shall be withdrawn and a

substitute opinion shall be filed.

FOR THE COURT: IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83588-2-I Respondent, DIVISION ONE v. PUBLISHED OPINION ADAM BRANTLY MYERS,

Appellant.

HAZELRIGG, A.C.J. — Adam Myers appeals from a jury conviction for robbery

in the first degree. Myers contends the trial court erred by denying his pretrial CrR

8.3(b) motion to dismiss due to governmental misconduct. He also assigns error

to the denial of a for cause challenge to a juror. The first issue is independently

dispositive, and accordingly, we reverse and remand for further proceedings.

FACTS

The State charged Adam Myers with one count of robbery in the first degree

based on an incident at a Wells Fargo bank in the city of Snohomish, Washington.

On April 26, 2021, the day of the reported robbery, Detective Judith Saarinen

responded to the scene and took over as the primary investigator. Saarinen was No. 83588-2-I/2

an employee of the Snohomish County Sheriff’s Office (SCSO), but was assigned

as a detective for the city of Snohomish, which contracts with Snohomish County

to provide police services for the Snohomish Police Department (SPD). During

her initial investigation, Saarinen discovered that the robbery suspect had passed

a handwritten note to one of the bank tellers. Saarinen then received digital photos

and surveillance footage of the suspect from the day of the incident and ultimately

identified Myers as a suspect. Myers was arrested on May 2, 2021. SPD officers

later searched Myers’ residence pursuant to a search warrant and located a

handwritten note that appeared to be the one given to the bank teller.

On September 21, 2021, Tyler Scott, the deputy prosecuting attorney (DPA)

handling Myers’ case, sent an e-mail to Myers’ trial counsel. In the e-mail, Scott

explained that the investigation had resulted in the discovery of a letter written by

Myers to his former landlord and, in an effort to compare the handwriting, SCSO

corrections deputies had seized five documents from Myers’ jail cell. According to

Scott, Saarinen called him and stated that she received photographs of the

documents and became concerned that they contained privileged attorney-client

communications. To determine whether they were in fact privileged, Scott then

directed that the documents be reviewed by an “uninvolved detective,” SCSO

Detective David Bilyeu, who indicated that several 1 of the five documents that were

ultimately seized may have contained attorney-client communications.

1 Though Scott’s e-mail states that Bilyeu had determined three of the five documents may

have contained attorney-client privileged communications, Bilyeu later testified he believed four of them did.

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On September 27, 2021, Myers moved to dismiss the case under CrR 8.3(b)

based on governmental misconduct. At the hearing on the motion to dismiss, the

testifying witnesses included Snohomish County Jail Corrections Deputy Pavel

Ryakhovskiy, Bilyeu, Saarinen, and Myers. At the conclusion of the hearing, the

trial court found that a state actor had infringed on Myers’s Sixth Amendment right

to counsel but that the State had rebutted the presumption of prejudice by proof

beyond a reasonable doubt. Accordingly, the trial court denied Myers’ CrR 8.3(b)

motion and instead ordered a lesser remedy of suppression of the documents

collected from Myers’ jail cell. In late November 2021, Myers’ case proceeded to

trial and the jury found him guilty as charged.

Myers timely appealed.

ANALYSIS

I. CrR 8.3(b) Motion to Dismiss for Governmental Misconduct

Myers assigns error to numerous findings of fact and conclusions of law

(FFCL) entered pursuant to the trial court’s order denying his CrR 8.3(b) motion to

dismiss. Myers contends that the trial court erred in denying his motion and in

ordering the lesser remedy of suppression, because the State violated his Sixth

Amendment right to counsel when it intercepted and seized privileged

communications and failed to prove beyond a reasonable doubt that no prejudice

resulted from that violation.

CrR 8.3(b) provides that a trial court “may dismiss any criminal prosecution

due to arbitrary action or governmental misconduct when there has been prejudice

to the rights of the accused which materially affect the accused's right to a fair trial.”

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“Dismissal under CrR 8.3(b) requires a showing of arbitrary action or governmental

misconduct, but the governmental misconduct need not be of an evil or dishonest

nature; simple mismanagement is enough.” State v. Brooks, 149 Wn. App. 373,

384, 203 P.3d 397 (2009). This court “review[s] 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).

A decision is based on untenable grounds or made for untenable reasons when it

is “reached by applying the wrong legal standard,” and a decision is manifestly

unreasonable when “it falls outside the range of acceptable choices, given the facts

and the applicable legal standard.” State v. Horn, 3 Wn. App. 2d 302, 312, 415

P.3d 1225 (2018). “[A]ppellate courts retain the authority to clarify and refine the

outer bounds of the trial court's available range of choices and, in particular, to

identify appropriate legal standards.” State v. Sisouvanh, 175 Wn.2d 607, 623,

290 P.3d 942 (2012).

“The Sixth Amendment guarantees a criminal defendant the right to

assistance of counsel, which includes the right to confer privately with that

counsel.” State v. Peña Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257 (2014) (citing

U.S. CONST. amend. VI). “State intrusion into those private conversations is a

blatant violation of a foundational right.” Id. In State v. Irby, this court clarified and

reiterated the four-part inquiry used to properly analyze a CrR 8.3(b) motion to

dismiss based on the State’s violation of the defendant’s Sixth Amendment right:

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

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2. If so, did the state actor(s) infringe on a Sixth Amendment right of the defendant? 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 Wn. App. 2d 247, 252-53, 415 P.3d 611 (2018). Here, the first two prongs are

not at issue as the parties agree that the conduct of state actors resulted in the

infringement of Myers’ constitutional right to private communication with his

attorney. The trial court properly found, and the State did not dispute, that

Ryakhovskiy, Bilyeu, and Saarinen were all state actors. 2 Before addressing the

third and fourth prongs of the Irby test, we review the evidence adduced at the

hearing on the CrR 8.3(b) motion and the facts expressly found by the court.

On September 14, 2021, while Myers was in custody at the Snohomish

County Jail, Saarinen learned that Myers’ former landlord had received a letter

from him. The letter, which was written in cursive, contained a confession

indicating that Myers was forced to rob the bank by an individual who had

threatened him with a gun. In order to obtain a known handwriting sample to

compare with the letter, Saarinen phoned jail booking desk and requested any

2 The trial court also concluded that “[a] state actor participated in infringing conduct when

the defendant’s legal documents were photographed.” Because this conclusion of law is unchallenged, it becomes the law of the case. State v. Bilgi, 19 Wn. App. 2d 845, 855, 496 P.3d 1230 (2021), review denied, 199 Wn.2d 1002, 504 P.3d 827 (2022).

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kites 3 that Myers had submitted. The jail provided Saarinen one kite believed to

have been written by Myers. 4

On September 15, 2021, Saarinen consulted with a forensic scientist at the

Washington State Patrol Crime Laboratory who advised that handwriting

comparison could be conducted, but that it would be “beneficial to have additional

documents with cursive writing, and several known handwriting documents.” She

then e-mailed the jail intelligence unit at the Snohomish County Jail, seeking

additional handwriting samples from Myers that could be used to compare to the

cursive handwriting in the letter. Ryakhovskiy responded to Saarinen’s request via

e-mail and told her that he would search Myers’ jail cell. Shortly thereafter,

Ryakhovskiy entered Myers’ cell, noticed several handwritten papers on the desk,

and took photographs of 10 different documents. The record does not establish

how many of those documents were printed or written in cursive and, therefore,

responsive to the guidance of the forensic scientist. Ryakhovskiy then e-mailed

those 10 photographs to Saarinen.

Saarinen testified that, after she opened the e-mail and began saving the

files on her computer, she saw a document with the date April 26 titled “the story”,

another document with the word “haircut,” and another with the phrase “notes

about defense.” She explained that, at that point, she became concerned the

documents may contain privileged material, so she closed her e-mail and did not

3 “Kites” are written jail communications from incarcerated people to jail or medical staff or

to their lawyers. 4 When asked whether that kite was written in cursive or print, Saarinen stated that she

“believe[d] it was print.” When she was asked if she had a cursive handwriting exemplar (known sample) from Myers at that point in the investigation, she testified that she had obtained “a potential signature of his.”

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read anything further. She then contacted DPA Scott and informed him about her

concerns regarding the documents, and the two of them developed a plan to retain

them in order to determine whether they contained privileged communications.

Saarinen deleted the folder where she had begun to save the images and then

emptied the recycle bin on her computer, however, she retained the original e-mail

from Ryakhovskiy with the images attached.

Based on her conversation with Scott, Saarinen asked Ryakhovskiy to

return to Myers’ cell and seize documents “that could be described as not

appearing to be legal documents.” (Emphasis added.) The following day,

Ryakhovskiy went back and took 5 documents “that looked like just notes,” but he

later asserted, in his testimony at the motion hearing, that he did not read the

contents of the documents he seized. Each of the 5 documents he collected were

included in the pictures that he had previously sent to Saarinen. According to

Ryakhovskiy, he determined which documents might contain privileged

communications by the “type of paper and then how neat they were written”; of the

10 documents he had originally photographed, Ryakhovskiy decided against

removing those that were written on lined paper 5 and were “neat.” None of these

documents contained a cursive handwriting exemplar, despite the earlier

instructions from the crime lab as conveyed by Saarinen. Ryakhovskiy removed

and kept the other documents in his desk until Bilyeu met him at the jail to collect

them a few days later. Bilyeu reviewed each of the 5 documents and “considered

5 Ryakhovskiy’s description of the type of paper varied, he first described it as “lined legal

paper,” but then backtracked as to whether it was legal size or letter size, yellow or white.

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four to fall in the category of attorney-client privilege.” The 1 document that did not

contain privileged information was a jail kite.

After the conclusion of testimony on the motion, the court heard argument

from the parties and issued its ruling just over two weeks later. In the recitation of

relevant facts in its oral ruling, which were expressly incorporated into the written

FFCL, 6 the court found Ryakhovskiy “did not share the documents with the

prosecutor or anyone else,” but the deputy expressly testified, and all of the

government actors appeared to agree, that he not only shared them with Bilyeu

but did so at the direction of the DPA. 7

The court further found that Scott directed Saarinen to have an “uninvolved

detective” assigned to retrieve Myers’ documents and review them “to determine

if they contained privileged information.” It also noted that Bilyeu testified “he is

aware that attorney-client privileged information should not be in the possession

of the prosecutor or law enforcement as it maintains a case.” The court went to

some lengths to make clear that Bilyeu worked in a different department than

6 In his opening brief, Myers assigns error to a number of the findings of fact (34-38, 63,

65-68) and conclusions of law (3-5) entered by the trial court. We review challenged findings to determine whether substantial evidence supports them. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014). We review conclusions of law de novo to determine whether they are supported by the findings of fact. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) However, Myers fails to offer argument as to how findings 34-38, 63, or 65-67 are not supported by substantial evidence, particularly given that they rest on the judge’s credibility determinations. This court does not review the credibility determinations made by the trial court. State v. Cross, 156 Wn. App. 568, 581, 234 P.3d 288 (2010). Accordingly, we decline to review those findings rooted in the court’s determinations as to credibility or for which no argument is presented. Finding 68 and conclusion 4 are analyzed in detail in Parts A and B, and conclusions 3 and 5 in Part C, infra. 7 The court’s various findings on these points are inconsistent and, at times, directly

contradictory. In the written FFCL, the court found both that Ryakhovskiy “did not share or disseminate the documents with anyone” (Finding 44) and that he “did not disseminate the documents to anyone other than Detective Saarinen (via email) and then provided the original documents to Detective Bilyeu.” Finding of Fact 61 (emphasis added).

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Saarinen, that Ryakhovskiy did not enter Myers’ cell “for a nefarious purpose,” and

that the DPA “does not intend to use any of the documents at trial.” Findings like

these, and the court’s conclusion that “the defendant has failed to plead or

demonstrate actual prejudice in this case,” clearly establish that the court both

misinterpreted and misapplied the controlling authority on the issue presented by

Myers’ motion. As a starting point, conclusion of law 2 states that the entirety of

the infringing conduct was when “the defendant’s legal documents were

photographed,” which establishes that the judge failed to recognize each separate

infringement of Myers’ constitutional rights by various government actors. 8 This

fundamental misunderstanding is further demonstrated by the court’s concluding

remarks just before it denied the motion, “the conduct here does not rise to the

level of egregiousness where prejudice should be presumed,” which directly

contradicts well-settled case law.

A. Prejudice Is Presumed

The third prong of the test as articulated in Irby requires the court to address

whether the defendant was prejudiced by the State’s misconduct. 3 Wn. App. 2d

at 256-57. Once it is established that the State has violated the defendant’s Sixth

Amendment right, there is a presumption of prejudice to the defendant that can be

rebutted only if the State proves beyond a reasonable doubt that the defendant

suffered no prejudice. Peña Fuentes, 179 Wn.2d at 819-20. Because the

“constitutional right to privately communicate with an attorney is a foundational

8 The separate and compounded infringements are reviewed greater detail in Part C,

infra.

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right,” the State must be held to the “highest burden of proof to ensure that it is

protected.” Id. at 820. Myers argues the trial court erroneously concluded that the

State met this burden.

As a preliminary matter, the court appeared disinclined to even apply the

required presumption of prejudice once it had determined that a state actor

infringed on Myers’ right to counsel by intercepting privileged communications. In

issuing its oral ruling on the motion, the court stated:

[T]he conduct here does not rise to the level of egregiousness where prejudice should be presumed. As such, this court cannot find that arbitrary government action or misconduct that prejudices the defendant and materially affects the defendant’s right to a fair trial has occurred.

This is a clear misinterpretation and misapplication of the controlling authority. The

determination of prejudice is not dependent on the court’s assessment of the

intention of the government actors or the degree of interference with the Sixth

Amendment rights of the accused; it is presumed. While conclusion 4 says the

“State overcame a presumption of prejudice,” the oral ruling establishes that the

court’s starting point in the analysis was misguided, both in its clear reluctance to

apply the required presumption and its assertion that Myers’ failed to demonstrate

prejudice. Over a half-century of case law explicitly holds that where government

acts interfere in the attorney-client relationship by intercepting privileged

communications, prejudice is presumed. Where the court had already found that

Ryakhovskiy, Saarinen, and Bilyeu were state actors and they variously possessed

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or read the privileged communication, Myers was not required to make any

additional showing of prejudice. 9

In State v. Cory, our Supreme Court reversed a conviction and ordered

dismissal of five counts of “second-degree burglary and larceny” due to the State’s

violation of Cory’s Sixth Amendment right, which occurred when sheriff’s deputies

recorded and listened to conversations he had with counsel while in the county jail.

62 Wn.2d 371, 372, 378, 382 P.2d 1019 (1963). The court emphasized that there

was “no way to isolate the prejudice resulting from an eavesdropping activity, such

as this.” Id. at 377. Accordingly, the court assumed that the information gained by

the sheriff was provided to the prosecutor, noting that “the opportunity and the

motive were there and the defendant ha[d] no way of knowing what was

communicated to the prosecutor.” Id. at 377 n.3. The court in Cory quoted the

United States Supreme Court for the proposition that “[t]he right to have the

assistance of counsel is too fundamental and absolute to allow courts to indulge in

nice calculations as to the amount of prejudice arising from its denial.” Glasser v.

9 Citing examples of prejudice provided in State v. Garza, the State argues the only way

Myers could have been prejudiced here was “that the intrusions ha[d] destroyed [Myers’] confidence in [his] attorney.” 99 Wn. App. 291, 301, 994 P.2d 868 (2000). According to the State, however, “this was not such a case” because Myers’ counsel was not involved in the State’s misconduct and “his attorney responded by filing a motion to dismiss the case based on the violation.” The State further contends that Myers’ posttrial motion for new counsel demonstrated that the intrusion had not “destroyed [Myers’] confidence” in his attorney because “[n]othing in the defendant’s motion argued or suggested that he was concerned with his attorney’s performance because of the privileged documents.” First, the mere fact that his counsel was not involved in the misconduct does not establish beyond a reasonable doubt that there was no harm to the attorney-client relationship. Second, the four examples of prejudice listed in Garza were not exhaustive and the State’s argument that other types of prejudice “could not have occurred” requires a thorough examination by the trial court on remand. Finally, the examples set out in Garza were prefaced with the following language: “even if there is no presumption of prejudice, the defendants still may demonstrate prejudice by demonstrating . . . .” Id. (emphasis added). Because prejudice is presumed here and the burden is on the State to disprove it, Myers’ posttrial motion and argument therein is not determinative on this issue.

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United States, 315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed. 680 (1942), quoted in Cory,

62 Wn.2d at 376.

In Peña Fuentes, the court expanded on Cory and explained that only when

“there is no possibility of prejudice to the defendant” resulting from an

eavesdropping violation of a defendant’s Sixth Amendment right is dismissal of the

charges not “required.” 179 Wn.2d at 819 (emphasis added). However, the court

continued, even in those “rare circumstances where there is no possibility of

prejudice,” the presumption of prejudice remains unless and until the State proves

beyond a reasonable doubt that there was no prejudice suffered by the defendant

due to the Sixth Amendment violation. Id. at 819-20. In that case, Peña Fuentes

was incarcerated pending trial on one count of rape of a child in the first degree,

three counts of child molestation in the first degree, and three counts of child

molestation in the second degree. Id. at 812. The prosecutor asked a detective

to listen to Peña Fuentes’ telephone calls from jail; the detective listened to six

conversations between Peña Fuentes and his attorney. Id. at 816. The prosecutor

told the detective to stop listening to the calls and not to disclose the content of

those conversations with anyone. Id. at 817. The prosecutor then informed

defense counsel and submitted a declaration stating that the detective had not

disclosed the substance of the communications. Id. Because the record was

unclear on whether the trial court held the State to its burden of proving that no

prejudice resulted from the eavesdropping violation, the court reversed the trial

court’s denial of Peña Fuentes’ motion to dismiss and remanded to the trial court.

Id. at 820.

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Similarly, in Irby, this court reversed the trial court’s order denying Irby’s

CrR 8.3 motion to dismiss and remanded for further proceedings. 3 Wn. App. 2d

at 250. Irby’s motion was based on the misconduct of corrections deputies at the

jail who had opened his outgoing mail containing privileged communications

intended for his attorney. Id. at 251. Although the trial court concluded that the

corrections deputies’ conduct had violated Irby’s Sixth Amendment right to

counsel, it placed the burden on Irby to show prejudice, reasoning that “state

misconduct by law enforcement is more likely to prejudice a defendant’s fair trial

right than is state misconduct by jail security.” Id. at 251, 257. On review, this

court rejected the trial court’s distinction between corrections deputies and other

law enforcement officers and held that the judge had erred by not applying the

presumption of prejudice. Id. at 258-59. We then looked to the evidence the State

provided to demonstrate a lack of prejudice, primarily, the prosecutor’s declaration

in which he attested he was not aware of the contents of the privileged

communications. Id. at 260-61. Because that declaration “did not eliminate the

possibility that Irby’s right to a fair trial was prejudiced,” we concluded that the

record did not establish that the State had met its burden to prove beyond a

reasonable doubt that Irby was not prejudiced. Id. at 262.

As the trial judge did in Irby, the trial court here, too, appears to draw a false

distinction between types of state actors: the law enforcement officers involved in

investigating and prosecuting Myers’ pending criminal charges and those in other

units of the same agency who were not assigned to the case at issue. The panel

in Irby was clear: where the court attempted to delineate and apportion prejudice

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based on the roles of the state actors, “[t]he trial court’s reasoning was flawed.” Id.

at 257. Bilyeu was a government actor who expressly received, retained, and

reviewed Myers’ privileged communications to counsel at the express direction of

other government actors. Accordingly, finding 68, which states that Myers “was

not prejudiced when a state actor obtained his letter,” is contradicted by the record

and inconsistent with the law as set out in Peña Fuentes, which clearly holds,

“State intrusion into those private [attorney-client] conversations is a blatant

violation of a foundational right.” 179 Wn.2d at 811. The trial court abused its

discretion by misapplying controlling law as to the presumption of prejudice and

issuing findings contrary to the law and evidence.

B. State Must Disprove Prejudice Beyond a Reasonable Doubt

With the presumption of prejudice as the starting point, the court was

required to hold the State to its burden to disprove any prejudice to Myers beyond

a reasonable doubt. While here the court so concluded, the record again

establishes that it applied an improper standard. Irby relies on Peña Fuentes to

reiterate that a simple declaration (or in this case, testimony) from the prosecutor

that the detective did not communicate the privileged information to them was

insufficient to carry the State’s burden. 3 Wn. App. 2d at 260-61. Here, Saarinen

assured the court that she did not read the contents of the privileged

communication (but also specifically recalled precise wording contained in some

of the documents) and the DPA purportedly declared under penalty of perjury10

that he did not read or become aware of the contents of the intercepted

10 No such declaration is in the record transmitted on appeal.

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communications. However, while Saarinen testified, and the trial court accepted

as true, that she did not read the documents in the photographs other than certain

specific words, she never confirmed that the subsequent steps she took in the work

up of Myers’ case were not influenced in any way by the interception of his

privileged communication or the information contained therein. Under the plain

language of Peña Fuentes and Irby, these claims of ignorance by certain key

government actors are insufficient to meet the State’s appropriately high burden of

proof.

More critical to our conclusion that the court applied the wrong standard is

the fact that there is definitive evidence in the record that a government actor

unquestionably read the privileged attorney-client communications. Bilyeu

expressly confirmed that he reviewed the documents in their entirety. Further, he

testified that he did so at the explicit direction of the lead detective on the case with

the agreement of the attorney representing the people of the State of Washington

in prosecuting the case against Myers. Regardless of the purpose behind the

intrusion into the protected attorney-client relationship (here, purportedly to have

a nonlawyer make the definitive legal determination as to whether they were, in

fact, privileged communications), there is uncontroverted evidence in the record of

a state actor reading protected correspondence.

Further, conclusion of law 4, which Myers also challenges, says, “The State

overcame a presumption of prejudice when it established beyond a reasonable

doubt that the defendant’s right to a fair trial was not prejudiced by the procedure

implemented in this case.” Setting aside the fact that this conclusion does not

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properly flow from the findings, in part, for the reasons set out above, it further

demonstrates the court’s use of an incorrect legal standard. This conclusion sets

out the standard for CrR 8.3(b) motions generally, but fails to apply the overlay

required when the motion is premised on a violation of the Sixth Amendment based

on interception of privileged communication. Myers’ right to a fair trial is impacted

by his denial of the Sixth Amendment right to counsel because the government

intruded on that protected relationship. Cory establishes that this is the question

at the heart of the inquiry when the court is presented with a CrR 8.3(b) motion in

this particular procedural posture:

It is also obvious that an attorney cannot make a “full and complete investigation of both the facts and the law” unless [they] ha[ve] the full and complete confidence of [their] client, and such confidence cannot exist if the client cannot have the assurance that [their] disclosures to [their] counsel are strictly confidential.

62 Wn.2d at 374 (quoting State v. Hartwig, 36 Wn.2d 598, 601, 219 P.2d 564

(1950)). While it is clear the court considered whether the lead detective or DPA

had access to any defense strategy as a result of the violation, the record before

us is silent on whether the trial court ever actually considered the government

misconduct that gave rise to the motion to dismiss in the first place, the very breach

of the confidentiality promised to an accused person when communicating with

their counsel. This misapplication of the guiding standard is also an abuse of

discretion.

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C. Fashioning an Appropriate Remedy Considering the Totality of Circumstances

The final step in the analysis set out in Irby is to determine the appropriate

remedy, “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 Wn. App. 2d at 252-53. As

to a remedy for the violation of Myers’ rights under the Sixth Amendment, the

court’s conclusion suffers from the same misapplication of the law that infiltrated

its consideration of the third prong under Irby in that the court seemed to minimize

the conduct by the government officials and only begrudgingly conclude that Myers

was prejudiced. In its ruling denying the motion to dismiss, the court expressly

stated:

While the State’s decision to use a detective from the same agency, albeit one unconnected to the case, was not a proper decision, the sole reason of Detective Bilyeu’s review of the protected document was to ensure that any privileged information of the defendant was properly screened off from the prosecution of the defendant. . . . While the more preferred cause [sic] of action would have been for the DPA to use a more neutral source for review like the courts, the conduct here does not rise to the level of egregiousness where prejudice should be presumed.

The first misinterpretation and misapplication of the law, as discussed in the

previous section, is that the jurisprudence is clear that once privileged attorney-

client communications are intercepted by a government actor like an investigating

officer (Peña Fuentes), a corrections deputy (Irby), or a prosecutor, prejudice is

presumed. The presumption of prejudice is not triggered by a court’s

determination as to the “level of egregiousness” of the incursion into this

constitutionally protected relationship.

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The next misinterpretation of the law that occurred here is where the court

weakly asserted that the decision to have another SCSO detective review the

protected materials to determine whether they were privileged was “not a proper

decision,” and then failed to clearly state that such a decision by the government

was not only inconsistent with the law but was also a further government

interception of protected communications. Bilyeu’s review of the privileged

documents was yet another a violation of Myer’s Sixth Amendment right to private

communications with defense counsel. 11 Where concerns arise that a government

actor may have come across privileged communications, the appropriate party to

review the intercepted information is a neutral judicial officer who can employ

additional protections for the accused such as in camera review.

There is little in the trial court’s oral ruling to dissuade the SCSO or the

prosecutor’s office from repeating this conduct in the future, and it was utterly silent

on the fact that each of those government entities lacks the authority to render

such opinions without further violating the Sixth Amendment rights of the accused.

The written FFCL are virtually silent on this aspect of the issue. The need for a

clear ruling prohibiting such practices became abundantly apparent at oral

argument before this court. When asked whether a detective was the proper party

to make a determination as to what constitutes communication protected by

attorney-client privilege, the State answered in the affirmative and further claimed

11 At oral argument, the State ultimately conceded that Bilyeu’s review of the privileged

communications was itself a violation of Myers’ Sixth Amendment right. Wash. Ct. of Appeals oral argument, State v. Myers, No. 83588-2-I (Apr. 25, 2023), at 12 min., 40 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals- 2023041313.

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that “the court has approved of the use of what is colloquially referred to as a ‘taint

team’ in other situations analogous to this.” 12 When the panel inquired into this

practice of having a “taint team” of detectives review and determine whether

documents contain privileged attorney-client information, the State said it was “not

regular” but “it appeared to the [prosecutor’s] office to be a permissible way to deal

with an unknown document.” 13

While a “taint team” may be an appropriate way to approach other

evidentiary issues that could arise in the investigation of a criminal case, this

method fails to recognize, much less honor, the unique nature of this

constitutionally protected relationship. This is not a matter that can be sanitized

by the same sort of screening as may be employed where one attorney in an office

is conflicted off of a matter handled by a colleague. The portion of the court’s oral

ruling that emphasized Bilyeu’s role in this endeavor was “to ensure that any

privileged information” was “properly screened off from the prosecution of the

defendant” was simply incorrect. The government’s possession of protected

communications, regardless of the role the individual actor has in the prosecution

of the defendant, is itself the constitutional violation. It is clear from the trial court’s

ruling and the State’s argument before this panel that this impermissible practice

has apparently become institutionalized to some extent and is found acceptable

by the government attorneys in the local prosecutor’s office. This is despite the

fact that all of the law enforcement officers who testified at the motion hearing

12 Wash. Ct. of Appeals oral argument, supra, at 13 min., 15 sec. It is unclear to which

“court” the prosecutor was referring, the trial court or an appellate court. Case law cited herein suggests it could not be the latter. 13 Wash. Ct. of Appeals oral argument, supra, at 13 min., 40 sec.

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indicated that they were aware that they should avoid contact with or otherwise

intercepting privileged communications between an accused person and their

attorney. Consequently, we must reiterate that in a criminal prosecution when a

state actor may have obtained privileged attorney-client communications, the sole

reviewer of those communications for purposes of making a definitive conclusion

on that issue is to be a neutral judicial officer.

The manner by which the trial court here appears to have minimized the

layers of governmental misconduct by the SCSO and DPA establishes that the

court abused its discretion by misapprehending and misapplying the controlling

authority. Proper review of the totality of the circumstances in order to select an

appropriate remedy must necessarily include the following facts as established in

the record, consistent with the court’s credibility determinations which we leave

undisturbed:

• Prior to Ryakhovskiy entering Myers’ jail cell in search of handwritten

documents, Saarinen had already obtained a jail kite with Myers’

handwriting and a potential signature of his.

• Ryakhovskiy was trained on handling legal documents, yet

proceeded to photograph 10 documents in Myers’ cell on September

16, 2021 without regard for their possible contents.

• The same day, Ryakhovskiy disseminated those documents via e-

mail to Saarinen, another government actor and the lead detective

on Myers’ case.

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• Saarinen reviewed the documents with at least enough attention to

read and recall certain words within them.

• On one of the documents, Saarinen saw the date written as “April

26,” which she recognized that as the date of the alleged robbery.

• Saarinen deleted the images, and emptied her recycle bin on her

computer, sometime contemporaneous to her communication with

the DPA on Myers’ case.

• DPA Scott called Saarinen and advised retention of the intercepted

communication.

• Scott and Saarinen apparently agreed that the best course of action

in light of the possible Sixth Amendment violation was to seize the

documents and disseminate them to yet another government actor

for review.

• This practice had become normalized to the extent that detectives

who review potentially privileged communications are “colloquially

referred to as a taint team.”

• Saarinen communicated with Ryakhovskiy again, after advising

Scott that nothing had been seized from Myers’ cell previously, and

directed him to now seize the original “handwriting samples” that he

had photographed, excluding any that contained privileged

information. 14

14 From a practical standpoint, it is unclear to this panel how Saarinen expected Ryakhovskiy to exclude items containing privileged information without first reading them, which would then be yet another violation of Myers’ Sixth Amendment rights.

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• When Ryakhovskiy returned to Myers’ cell on September 16 and

seized 5 documents therein, he believed that the documents

containing “neat” handwriting on lined paper were likely privileged

and left those documents in the cell—a standard he did not apply

when he originally took pictures of the 10 documents and sent them

to Saarinen.

• Bilyeu was directed by his supervisor, the sergeant of the major

crimes unit, to contact Scott regarding involvement in the Myers

case.

• Scott, an attorney representing the State, directed Bilyeu to review

the documents seized from Myers’ cell by Ryakhovskiy and “let the

prosecutor’s office, [Scott], know if there was anything in there that

would be related to the attorney-client privilege.”

• On September 20, Bilyeu retrieved the documents seized by

Ryakhovskiy at Saarinen’s direction and reviewed them in their

entirety for the express purpose of identifying information protected

by attorney-client privilege.

• Bilyeu concluded that 4 of the 5 documents seized from Myers’ cell

were privileged and “the State maybe shouldn’t be in possession” of

them, so he sought further instruction from DPA Scott.

• On September 21, DPA Scott finally notified Myers’ attorney that the

State had intercepted, and retained, documents suspected to contain

privileged communications to her from her client and asked her to

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retrieve them from Bilyeu and confirm whether they were, in fact,

privileged.

• Scott had concluded that he would seek in camera review by a

judicial officer only after confirmation from defense counsel about

whether the documents seized were protected communications.

Review of the transcript and FFCL issued after the hearing demonstrate that the

court either failed to identify or properly consider many of these facts or failed to

appropriately evaluate how they compounded both the government infringement

on Myers’ Sixth Amendment rights and the utter mishandling of the incident by

almost every State actor involved.

This last issue is necessarily a part of the court’s fashioning of an

appropriate remedy, as the other stated purpose of the remedy in a case like this

is expressly to deter the government from engaging in conduct known to violate

the rights of the accused:

if the investigating officers and the prosecution know that the most severe consequence which can follow from their violation of one of the most valuable rights of a defendant, is that they will have to try the case twice, it can hardly be supposed that they will be seriously deterred from indulging in this very simple and convenient method of obtaining evidence and knowledge of the defendant's trial strategy.

Cory, 62 Wn.2d at 377. In State v. Garza, Division Three of this court recognized

federal precedent and noted that a per se prejudice rule was adopted by the Tenth

Circuit in cases such as these because that circuit concluded “‘that no other

standard can adequately deter this sort of misconduct.’” 99 Wn. App. 291, 299,

994 P.2d 868 (2000) (quoting Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir.

1995)). While “dismissal is an extraordinary remedy” under CrR 8.3(b), it is one

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that should be thoroughly and meaningfully considered, along with other options

available to the court. Id. at 301-02.

In State v. Granacki, we reiterated the importance of deterrence in crafting

an appropriate remedy. 90 Wn. App. 598, 959 P.2d 667 (1998). In that case, we

affirmed the trial court’s dismissal of two counts of robbery in the second degree,

one count of attempted robbery in the second degree, one count of theft in the third

degree, and one count of assault in the fourth degree based on the misconduct of

the lead detective for the State. Id. at 599-600. During a brief recess at the

beginning of trial, the court clerk witnessed the detective looking at the top page of

defense counsel’s legal pad that contained privileged attorney-client

communications. Id. at 600. The clerk testified that she did not know how long the

detective was looking at the documents, but she saw him looking at them for

“several seconds.” Id. The detective admitted to viewing the materials but

asserted that he had only noticed and read his own name. Id. Even though the

detective had not communicated to the prosecutor about what he had seen,

prejudice was still presumed. Id. at 604.

On review, we explained that “any intrusion into a defendant’s confidential

communications with [their] attorney is sanctionable” and emphasized that

“dismissal not only affords the defendant an adequate remedy” but it also serves

the additional purpose of discouraging “‘the odious practice of eavesdropping on

privileged communication.’” Id. at 603 (quoting Cory, 62 Wn.2d at 378). We

affirmed the dismissal and further noted that the following remedy would have also

been appropriate under the circumstances: banning the detective from the

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courtroom, excluding his testimony, and prohibiting him from discussing the case

with anyone. Id. at 604.

In briefing, the State contends that the trial court “fashioned a remedy

consistent with the discretion the Granacki court explicitly identified.” We disagree.

Here, the court’s remedy, as set out in conclusion 5, was “suppression of any

documents collected from the defendant’s cell and [to] order that persons with

knowledge of such documents do not share or disseminate the substance of [sic]

contents of those documents.” This ordering language does nothing more than

affirm the existing state of the law with regard to the seized documents or

information contained therein. The documents were already inadmissible, absent

a waiver by Myers, precisely because they are privileged attorney-client

communications, and ordering government actors to not disseminate information

intercepted in violation of the Sixth Amendment is simply a command to follow

rules by which they are already bound and, more critically, that they have already

violated. This is no sanction at all on the government actors, who appear to have

genuinely believed that their conduct was wholly appropriate, so there is no

discouragement from engaging in similar behavior in the future.

The remedy here is woefully inadequate and further demonstrates that the

trial court did not apply the standard set out in Irby, wherein we set out a

non-exhaustive list of other remedies short of a dismissal, which were likely to

further the other goal of deterring future government misconduct:

If called on to fashion a remedy on remand, the trial court should consider the totality of the circumstances, evaluating both the degree of prejudice to [the accused’s] right to a fair trial and the degree of nefariousness of the conduct by the state actors. This

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might include considering the motivations of the jail guards . . . and the extent to which, if at all, [the accused’s] privileged attorney-client communications were utilized by the State in its . . . prosecution of [the accused] 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 [the accused’s] prosecution, disqualification of the . . . County Prosecuting Attorney’s Office from further participation in this case, or exclusion of witnesses tainted by the governmental misconduct.

3 Wn. App. 2d at 264-65. In fashioning an appropriate remedy under CrR 8.3(b),

the court must necessarily look beyond whether the DPA reviewed the privileged

material, but rather to the broader impact of the government intrusion into a

protected relationship, how that constitutional violation may have deprived Myers

of his right to a fair trial, and how to disincentivize such governmental violations

going forward.

We reverse the denial of the CrR 8.3(b) motion to dismiss and remand for

the court to apply the proper standard established by controlling case law. If the

court determines that dismissal is proper, that necessarily terminates the case.

Pursuant to Irby, even if “the trial court determines that a remedy short of dismissal

is warranted, vacation of the judgment will nevertheless be necessary.” Id. This

is because anything that is short of dismissal, but goes beyond the ineffective

suppression previously ordered, will require the State to decide whether it will retry

Myers under those new remedial constraints (i.e., “disqualification of specific

attorneys . . ., disqualification of the . . . County Prosecuting Attorney’s Office from

further participation in this case, or exclusion of witnesses tainted by the

governmental misconduct.”). Id. On remand, the trial court must determine

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whether to grant the CrR 8.3(b) motion to dismiss, or to impose some lesser

remedy that goes beyond mere suppression of already inadmissible material, by

conducting a proper inquiry under Irby and considering the totality of the

circumstances as established by the testimony of the various government actors. 15

Reversed and remanded.

WE CONCUR:

15 Because Irby establishes that this reversal vacates the judgment and sentence, we decline to reach Myers’ remaining assignment of error regarding jury selection.

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