Filed Washington State Court of Appeals Division Two
April 4, 2017 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 48466-8-II
Respondent,
v.
DAVID JEREMY FOX, UNPUBLISHED OPINION
Appellant.
LEE, J. — David Jeremy Fox appeals his conviction for delivery of a controlled substance
within 1,000 feet of a school bus stop. Fox argues that (1) the Cowlitz County Prosecuting
Attorney’s Office should have been disqualified; (2) Detective Rocky Epperson provided improper
opinion testimony; (3) the prosecutor committed misconduct by arguing Detective Epperson’s
improper opinion testimony in closing argument; (4) defense counsel provided ineffective
assistance; and (5) cumulative error denied him a fair trial. We hold that Fox’s right to a fair trial
was violated because the Cowlitz County Prosecuting Attorney’s Office should have been
disqualified.1 Accordingly, we reverse and remand for further proceedings after the trial court
appoints a special deputy prosecutor.
FACTS
On June 3, 2014, the Cowlitz County Prosecuting Attorney’s Office charged Fox by
information with one count of delivery of a controlled substance within 1,000 feet of a school bus
1 This holding is dispositive of this appeal; therefore, we do not address Fox’s remaining claims. No. 48466-8-II
route stop. Attorney Ryan Jurvakainen from the Cowlitz County Office of Public Defense was
appointed to represent Fox.
On November 17, 2014, Jurvakainen represented Fox at his omnibus hearing2 and filed an
omnibus application on Fox’s behalf. Jurvakainen was later elected prosecutor of Cowlitz County
during the pendency of Fox’s case and attorney Patricia VanRollins took over representation of
Fox.
Jurvakainen filed a declaration on May 7, 2015, stating that he had not participated in the
prosecution of Fox’s case and will be screened from the case. Two weeks later, an amended
information was filed in Fox’s case. Jurvakainen’s name was the only name on the signature line
of the amended information, and he was identified as the Cowlitz County Prosecuting Attorney.3
At Fox’s first trial, the jury was deadlocked. After the trial court declared a mistrial, a
second trial was held. The jury in the second trial found Fox guilty of delivery of a controlled
substance within 1,000 feet of a school bus route stop. Fox appeals.
2 The omnibus hearing is set after allowing sufficient time for defense counsel to initiate and complete discovery, conduct further investigation of the case as needed, and continue plea negotiations. CrR 4.5(b). 3 Jurvakainen’s name also appeared on the State’s proposed jury instructions.
2 No. 48466-8-II
ANALYSIS
A. PROSECUTOR’S CONFLICT OF INTEREST
Fox argues that the Cowlitz County Prosecuting Attorney’s Office should have been
disqualified from prosecuting his case because the county’s elected prosecutor formerly
represented him as defense counsel in this case. We agree.
1. RAP 2.5(a)(3)
The State argues that we should decline to address this issue because Fox failed to raise the
issue during trial, and he may not do so for the first time on appeal. We “may refuse to review any
claim of error which was not raised in the trial court.” RAP 2.5(a). However, a party may raise a
claim involving “manifest error affecting a constitutional right” for the first time on appeal. RAP
2.5(a)(3).
The proper approach for analyzing whether an alleged error can be raised for the first time
on appeal involves four steps.
First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.
State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
3 No. 48466-8-II
1. Affecting a Constitutional Right
The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth
Amendments of the U.S. Constitution. State v. Sanchez, 171 Wn. App. 518, 541, 288 P.3d 351
(2012); State v. Sanchez, 122 Wn. App. 579, 587, 94 P.3d 384 (2004). Our Washington Supreme
Court has also held that the Sixth Amendment provides a right to conflict free counsel. State v.
Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003). The court has acknowledged that a
defendant’s right to a fair trial is typically compromised in conflict of interest situations involving
a prosecutor and noted:
The rationale for this [conflict of interest] rule lies in the appearance of impropriety created by vesting the “inherently antagonistic and irreconcilable” roles of the prosecution and the defense in one attorney. Howerton v. State, 1982 OK CR 12, 640 P.2d 566, 567. In holding that a part-time district attorney may not represent a criminal defendant anywhere in the state of Oklahoma, the Court of Criminal Appeals of Oklahoma reasoned that although it was difficult or impossible to determine whether the representation was actually affected, “[t]he public has a right to absolute confidence in the integrity and impartiality of the administration of justice. The conflicts presented in this case, at the very minimum, give the proceeding an appearance of being unjust and prejudicial.” Id. at 568.
State v. Tracer, 173 Wn.2d 708, 720, 272 P.3d 199 (2012) (footnote omitted). The court has also
recognized that in conflict situations, it is inherent that from the prosecutor’s prior representation
of the defendant in the case that the prosecutor “has likely acquired some knowledge of facts upon
which the prosecution is predicated or which are closely related thereto.” State v. Stenger, 111
Wn.2d 516, 521, 760 P.2d 357 (1988).
Other courts have held that a prosecuting attorney’s conflict of interest involves a violation
of due process. See Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008) (holding that
when a prosecuting attorney switches sides in the same criminal case, an actual conflict of interest
4 No. 48466-8-II
is apparent that constitutes a due-process violation, even without a specific showing of prejudice);
Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (holding that due process was violated when
a part-time Commonwealth Attorney had a conflict of interest by prosecuting a defendant for
assault while representing the defendant’s wife in a divorce action).
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
April 4, 2017 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 48466-8-II
Respondent,
v.
DAVID JEREMY FOX, UNPUBLISHED OPINION
Appellant.
LEE, J. — David Jeremy Fox appeals his conviction for delivery of a controlled substance
within 1,000 feet of a school bus stop. Fox argues that (1) the Cowlitz County Prosecuting
Attorney’s Office should have been disqualified; (2) Detective Rocky Epperson provided improper
opinion testimony; (3) the prosecutor committed misconduct by arguing Detective Epperson’s
improper opinion testimony in closing argument; (4) defense counsel provided ineffective
assistance; and (5) cumulative error denied him a fair trial. We hold that Fox’s right to a fair trial
was violated because the Cowlitz County Prosecuting Attorney’s Office should have been
disqualified.1 Accordingly, we reverse and remand for further proceedings after the trial court
appoints a special deputy prosecutor.
FACTS
On June 3, 2014, the Cowlitz County Prosecuting Attorney’s Office charged Fox by
information with one count of delivery of a controlled substance within 1,000 feet of a school bus
1 This holding is dispositive of this appeal; therefore, we do not address Fox’s remaining claims. No. 48466-8-II
route stop. Attorney Ryan Jurvakainen from the Cowlitz County Office of Public Defense was
appointed to represent Fox.
On November 17, 2014, Jurvakainen represented Fox at his omnibus hearing2 and filed an
omnibus application on Fox’s behalf. Jurvakainen was later elected prosecutor of Cowlitz County
during the pendency of Fox’s case and attorney Patricia VanRollins took over representation of
Fox.
Jurvakainen filed a declaration on May 7, 2015, stating that he had not participated in the
prosecution of Fox’s case and will be screened from the case. Two weeks later, an amended
information was filed in Fox’s case. Jurvakainen’s name was the only name on the signature line
of the amended information, and he was identified as the Cowlitz County Prosecuting Attorney.3
At Fox’s first trial, the jury was deadlocked. After the trial court declared a mistrial, a
second trial was held. The jury in the second trial found Fox guilty of delivery of a controlled
substance within 1,000 feet of a school bus route stop. Fox appeals.
2 The omnibus hearing is set after allowing sufficient time for defense counsel to initiate and complete discovery, conduct further investigation of the case as needed, and continue plea negotiations. CrR 4.5(b). 3 Jurvakainen’s name also appeared on the State’s proposed jury instructions.
2 No. 48466-8-II
ANALYSIS
A. PROSECUTOR’S CONFLICT OF INTEREST
Fox argues that the Cowlitz County Prosecuting Attorney’s Office should have been
disqualified from prosecuting his case because the county’s elected prosecutor formerly
represented him as defense counsel in this case. We agree.
1. RAP 2.5(a)(3)
The State argues that we should decline to address this issue because Fox failed to raise the
issue during trial, and he may not do so for the first time on appeal. We “may refuse to review any
claim of error which was not raised in the trial court.” RAP 2.5(a). However, a party may raise a
claim involving “manifest error affecting a constitutional right” for the first time on appeal. RAP
2.5(a)(3).
The proper approach for analyzing whether an alleged error can be raised for the first time
on appeal involves four steps.
First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.
State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
3 No. 48466-8-II
1. Affecting a Constitutional Right
The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth
Amendments of the U.S. Constitution. State v. Sanchez, 171 Wn. App. 518, 541, 288 P.3d 351
(2012); State v. Sanchez, 122 Wn. App. 579, 587, 94 P.3d 384 (2004). Our Washington Supreme
Court has also held that the Sixth Amendment provides a right to conflict free counsel. State v.
Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003). The court has acknowledged that a
defendant’s right to a fair trial is typically compromised in conflict of interest situations involving
a prosecutor and noted:
The rationale for this [conflict of interest] rule lies in the appearance of impropriety created by vesting the “inherently antagonistic and irreconcilable” roles of the prosecution and the defense in one attorney. Howerton v. State, 1982 OK CR 12, 640 P.2d 566, 567. In holding that a part-time district attorney may not represent a criminal defendant anywhere in the state of Oklahoma, the Court of Criminal Appeals of Oklahoma reasoned that although it was difficult or impossible to determine whether the representation was actually affected, “[t]he public has a right to absolute confidence in the integrity and impartiality of the administration of justice. The conflicts presented in this case, at the very minimum, give the proceeding an appearance of being unjust and prejudicial.” Id. at 568.
State v. Tracer, 173 Wn.2d 708, 720, 272 P.3d 199 (2012) (footnote omitted). The court has also
recognized that in conflict situations, it is inherent that from the prosecutor’s prior representation
of the defendant in the case that the prosecutor “has likely acquired some knowledge of facts upon
which the prosecution is predicated or which are closely related thereto.” State v. Stenger, 111
Wn.2d 516, 521, 760 P.2d 357 (1988).
Other courts have held that a prosecuting attorney’s conflict of interest involves a violation
of due process. See Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008) (holding that
when a prosecuting attorney switches sides in the same criminal case, an actual conflict of interest
4 No. 48466-8-II
is apparent that constitutes a due-process violation, even without a specific showing of prejudice);
Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (holding that due process was violated when
a part-time Commonwealth Attorney had a conflict of interest by prosecuting a defendant for
assault while representing the defendant’s wife in a divorce action).
Rules of Professional Conduct (RPC) have been promulgated to prevent conflicts of
interest. See e.g., RPC 1.9; see also RPC 1.10; Tracer, 173 Wn.2d at 718-19. A conflict arises
when the prosecutor has “previously personally represented or been consulted professionally by
an accused with respect to the offense charged” or closely related matters. Stenger, 111 Wn.2d at
520.
Under RPC 1.9(a), an attorney who has previously represented a client “shall not thereafter
represent another person in the same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former client unless the former client”
consents. Applying this rule, our Washington Supreme Court has held that
[A] prosecuting attorney is disqualified from acting in a criminal case if the prosecuting attorney has previously personally represented or been consulted professionally by an accused with respect to the offense charged or in relationship to matters so closely interwoven therewith as to be in effect a part thereof. One of the reasons a prosecuting attorney may not participate in such a criminal case is that it is inherent in such a situation that by virtue of the prosecuting attorney’s prior representation of an accused, the prosecuting attorney has likely acquired some knowledge of facts upon which the prosecution is predicated or which are closely related thereto. . . .
....
. . . Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is administrative head
5 No. 48466-8-II
should ordinarily also be disqualified from prosecuting the case and a special deputy prosecuting attorney appointed.
Stenger, 111 Wn.2d at 520-22 (emphasis added) (footnotes omitted).
Here, because Jurvakainen had represented Fox in this case and was later elected county
prosecutor during the pendency of Fox’s case, a conflict of interest existed, and he was disqualified
from the case. In fact, Jurvakainen admitted in his declaration that he was disqualified from the
case. And because Jurvakainen became the elected prosecutor for the county, the entire Cowlitz
County Prosecuting Attorney’s Office should have been disqualified as well, and a special deputy
prosecutor should have been appointed.
Although screening procedures were set in place, such procedures are only sufficient when
the prosecutor involved is a deputy prosecutor. The “public has a right to absolute confidence in
the integrity and impartiality of the administration of justice” and “[t]he conflicts presented in this
case [where one attorney holds the roles of prosecution and defense], at the very minimum, give
the proceeding an appearance of being unjust and prejudicial.” Tracer, 173 Wn.2d at 720 (quoting
Howerton, 640 P.2d at 567-68).
Thus, a conflict of interest existed, and because such conflicts give proceedings an
appearance of being unjust and prejudicial, Fox’s right to a fair trial is implicated. Therefore, Fox
has identified a potential error involving a constitutional right.
6 No. 48466-8-II
2. Manifest Error
In addition to showing an error affecting a constitutional right, Fox must show that the
error was manifest. RAP 2.5(a)(3). Because RAP 2.5(a)(3) serves a gatekeeping function, the
record must show that there is a fairly strong likelihood that a serious constitutional error has
occurred. State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014).
To obtain review, the party must show how the alleged error actually affected the
defendant’s rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). It is
this showing of actual prejudice that makes the error “manifest.” Id. But “the focus of the actual
prejudice [analysis] must be on whether the error is so obvious on the record that the error warrants
appellate review.” State v. O’Hara, 167 Wn.2d 91, 99–100, 217 P.3d 756 (2009). The key to this
determination is a plausible showing by the defendant that the alleged error had practical and
identifiable consequences in the trial of the case. Kirkman, 159 Wn.2d at 935. To determine if
such consequences exist, this court “must place itself in the shoes of the trial court to ascertain
whether, given what the trial court knew at that time, the court could have corrected the error.”
O’Hara, 167 Wn.2d at 100.
Here, the record shows that the error was manifest. Jurvakainen had previously represented
Fox, appeared at Fox’s omnibus hearing, and filed an omnibus application on his behalf. While
the case was pending, Jurvakainen was elected county prosecutor. Although Jurvakainen was
allegedly screened from Fox’s case, an amended information was filed in this case with only
Jurvakainen’s name on the signature line identifying him as the Cowlitz County Prosecuting
Attorney. This record existed during the pendency of Fox’s case. The conflict of interest was
obvious on the record, and the circumstance could have been corrected by disqualifying the
7 No. 48466-8-II
Cowlitz County Prosecuting Attorney’s Office and appointing a special deputy prosecutor in
accordance with Stenger.4
Thus, because the conflict of interest gave the proceedings an appearance of being unjust
and prejudicial, affecting the public’s confidence in the integrity and impartiality of the
administration of justice, the Cowlitz County Prosecuting Attorney’s Office should have been
disqualified from prosecuting Fox’s case. This conflict of interest could have been readily
remedied, but was not, and Fox’s right to a fair trial was violated.
Fox has shown a manifest error affecting his constitutional right to a fair trial. Therefore,
we next address the merits of his challenge.
3. Merits of the Conflict of Interest Challenge
The State argues that the failure to disqualify the prosecuting attorney’s office had no effect
on the trial of the case. Specifically, the State argues that the record does not show that any
confidences Fox may have disclosed were used at trial; that nothing suggested that the trial
prosecutor was privy to any of Fox’s confidences; and that the State’s only witnesses regarding
the most determinative facts of the case were the two officers who set up the controlled buy. We
disagree.
Here, a conflict existed because Jurvakainen was Fox’s defense attorney, and during that
representation, Jurvakainen became the elected county prosecutor. While Jurvakainen represented
Fox, an omnibus hearing was held and an omnibus application was filed. Such hearings occur
after defense counsel has had sufficient time to initiate and complete discovery, investigate the
4 111 Wn.2d at 522. See also RCW 36.27.030.
8 No. 48466-8-II
case, and conduct plea discussions. Therefore, the record shows that Jurvakainen acquired some
knowledge of the facts upon which the prosecution was predicated.
Fox’s case proceeded after Jurvakainen became the county prosecutor. Although
Jurvakainen filed a declaration stating that he will be screened from Fox’s case, an amended
information was filed 14 days later against Fox with only Jurvakainen’s name in the signature
block identifying him as the Cowlitz County Prosecuting Attorney. The RPCs expressly prohibit
a lawyer from representing a client if a concurrent conflict of interest exists unless the strict
exception is met whereby both clients are informed of the conflict and consent to the representation
in writing. Here, no such written consent was secured.
Given “the appearance of impropriety created by vesting the ‘inherently antagonistic and
irreconcilable’ roles of the prosecution and the defense in one attorney,” the proceedings were
tainted with “an appearance of being unjust and prejudicial.” Tracer, 173 Wn.2d at 720 (quoting
Howerton, 640 P.2d at 567-68). See also Stenger, 111 Wn.2d at 522 (“Where the prosecuting
attorney (as distinguished from a deputy prosecuting attorney) has previously personally
represented the accused in the same case . . . [,] the entire office of which the prosecuting attorney
is administrative head should ordinarily also be disqualified from prosecuting the case and a
special deputy prosecuting attorney appointed.”). Such appearances tend to erode the public’s
“absolute confidence in the integrity and impartiality of the administration of justice.” Tracer, 173
Wn.2d at 720.
Therefore, under the facts of this case, a conflict of interest existed when the Cowlitz
County Prosecuting Attorney’s Office continued prosecuting Fox after Jurvakainen became the
elected county prosecuting attorney. This conflict created an appearance of impropriety that
9 No. 48466-8-II
tainted the appearance of the fairness of the proceedings. The appearance of impropriety was
heightened when an amended information was filed in Jurvakainen’s name after he was allegedly
screened from the case. Thus, we hold that the continued prosecution of Fox’s case by the Cowlitz
County Prosecuting Attorney’s Office was a manifest constitutional error.
4. Harmless Error
A manifest constitutional error is subject to a constitutional harmless error analysis.
Kirkman, 159 Wn.2d at 927. If trial error is of constitutional magnitude, prejudice is presumed
and the State bears the burden of proving it was harmless beyond a reasonable doubt. Lamar, 180
Wn.2d at 588.
The State fails to present any argument on the issue of harmless error. Therefore, the
presumption of prejudice stands. Accordingly, we reverse.
B. ATTORNEY FEES
Fox requests that we decline to impose appellate costs against him if the State substantially
prevails on this appeal and makes a proper request. However, because Fox is the prevailing party,
we need not address the issue of appellate costs against him.
CONCLUSION
A defendant has the right to a fair trial free of conflicts of interest involving a prosecutor.
The continued prosecution of a defendant creates a conflict of interest when the defendant’s
counsel becomes the elected county prosecutor during the prosecution of the defendant’s case.
Such a conflict of interest gives the proceedings an appearance of being unjust and prejudicial,
affecting the public’s confidence in the integrity and impartiality of the administration of justice.
10 No. 48466-8-II
Therefore, Fox’s conflict of interest challenge constitutes a manifest error affecting constitutional
right and can be raised for the first time on appeal.
On the merits, the conflict of interest here violated Fox’s right to a fair trial. This
constitutional violation is presumptively prejudicial. The State does not argue that the error was
harmless. Therefore, the presumption remains.
Fox’s conviction is reversed and remanded for further proceedings after the trial court
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, J. We concur:
Bjorgen, C.J.
Melnick, J.