State v. Yates

765 P.2d 291, 111 Wash. 2d 793

• Court: Washington Supreme Court
• Decided: December 15, 1988
• Docket: 54970-2
• Status: Published

Opinions

Andersen, J.—

Facts of Case

This matter concerns a challenge to an order of the trial court granting the State's motion for pretrial discovery of "any tape recorded interviews, notes taken during any interviews and summaries of such interviews prepared by defendant's counsel or by their investigator of witnesses listed by the State." (Italics ours.)¹ We affirm in part and reverse in part.

The defendant, Daniel Joseph Yates, is charged with aggravated first degree murder, for which the State is seeking the death penalty, and with two counts of attempted first degree murder. He also stands charged with unlawful possession of a pistol and three counts of first degree rape.

After the State filed its list of State's witnesses, listing the potential prosecution witnesses, defense counsel and/or defense counsel's investigator interviewed certain of the persons listed. The State was required to disclose to defense counsel the statements of all of the State's witnesses.² The defendant apparently does not intend to call any of these prosecution witnesses at trial. The State moved for discovery of transcripts of any tape-recorded statements, interview notes, or summaries of interviews with the State's witnesses made by defense counsel or their investigator in the course of their investigation of the case.

The Superior Court for Kitsap County granted the discovery motion but provided:

That in order to protect work product under CrR 4.7(f)(1) and any privileged material the Court shall review in camera all such transcripts of tape recorded interviews, notes or summaries and will exclude those portions of the tape recorded interviews or notes which are work product as defined in CrR 4.7(f)(1) or any privileged material.

(Italics ours.) Findings of Fact and Conclusions of Law and Order Regarding State's Motion for Discovery, at 3.

On motion of defense counsel, the trial court's discovery order was stayed pending direct review by this court.

Defendant's various objections to the trial court's order reduce to the following issue.

Issue

Did the trial court abuse its discretion when it ordered defense counsel to produce for in camera review all transcripts of interviews, notes taken during such interviews and summaries of interviews of State's witnesses prepared by defense counsel and the defense investigator?

Decision

Conclusion. To the extent the trial court's order encompassed the pretrial disclosure of statements, signed or unsigned, recorded or written, given by potential prosecution witnesses during interviews with defense counsel or their investigator, such order was not an abuse of the trial court's discretion. The notes taken during such interviews, as well as the summaries of interviews prepared by defense counsel or their investigator, should not be included in this pretrial discovery order; they may, however, be subject to disclosure at trial if counsel or the investigator should be called as a witness by the defense for the purpose of impeaching the testimony given by a previously interviewed prosecution witness.³

Generally speaking, the scope of discovery is within the trial court's sound discretion and the decisions of the trial court will not be disturbed absent a manifest abuse of that discretion.⁴ In this state, the criminal discovery provisions of the Superior Court Criminal Rules, CrR 4.7, guide the trial court in the exercise of its discretion over discovery. CrR 4.7 is a reciprocal discovery rule, with the prosecutor's and defendant's obligations being separately listed, and with other subsections of the rule encompassing additional and discretionary disclosures and matters not subject to disclosure also being carefully set out.

The principles underlying CrR 4.7 have been stated as follows:

In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protections of persons, effective law enforcement, the adversary system, and national security.

Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub'g Co. ed. 1971).⁵ Guidance in construing the criminal discovery rule is also found in CrR 1.2:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay.

We cannot agree with defendant that the trial court's order here was entirely beyond the scope of the rules. Rather, bearing the foregoing principles in mind, we conclude that CrR 4.7 gave the trial court the authority to here order production of the recorded or transcribed statements of potential prosecution witnesses that were taken during interviews of those persons by defense counsel or their investigator. CrR 4.7(b) (2) (x) specifically provides:

(2) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, the court on motion of the prosecuting attorney or the defendant, may require or allow the defendant to:

(x) Allow inspection of physical or documentary evidence in defendant's possession;

(Italics ours.)

Allowing the State access to the written and recorded statements of the witnesses fosters the goal of preventing surprise, which could cause trial disruption and further continuances of the trial. Counsel for the State in the exercise of prudence would undoubtedly want to give the State's witnesses the opportunity to review their statements in order to refresh their recollections prior to testifying. We see no reason why the State and the State's witnesses should not also have the opportunity to review the statements these witnesses may have given to the defense, particularly since the trial of this case was considerably delayed at the request of the defense, and since the State was required to provide the defense with copies of the statements of the State's witnesses. Under modern trial practice, the possibility of the defense using statements it took to ambush or "sandbag" State's witnesses on cross examination is not a valid reason to reverse the trial court's order.⁶

Our decision herein also accords with the clear policy this court expressed over two decades ago:

At this point, we momentarily pause to observe that the rules of discovery are designed to enhance the search for truth in both civil and criminal litigation. And, except where the exchange of information is not otherwise clearly impeded by constitutional limitations or statutory inhibitions, the route of discovery should ordinarily be considered somewhat in the nature of a 2-way street, with the trial court regulating traffic over the rough areas in a manner which will insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.

State v. Boehme, 71 Wn.2d 621, 632-33, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013 (1968). The United States Supreme Court expressed similar sentiments in United States v. Nixon, 418 U.S. 683, 709, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974):⁷

We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.

Production of the statements of the prosecution witnesses in this case increases the chance that all relevant facts will be developed in an efficient and fair manner.

Defendant argues, however, that disclosure of these statements deprives him of his constitutional rights under the fifth, sixth and fourteenth amendments to the United States Constitution,⁸ and violates the attorney-client privilege and the work product doctrine. We disagree. We perceive no constitutional basis for preventing disclosure to the State of the recorded and written statements given by prosecution witnesses to defense counsel or their investigator.

The right against compulsory self-incrimination, guaranteed by the Fifth Amendment, is personal to the defendant.⁹ "[I]f the production does not involve defendant's own communication . . . the privilege would not apply no matter when disclosure is required." 2 W. LaFave & J. Israel, Criminal Procedure § 19.4(g), at 523 (1984). The statements in question were not made by the defendant, therefore, the trial court's disclosure order does not violate his right against compulsory self-incrimination.¹⁰

Similarly, we perceive no violation of defendant's right to effective assistance of counsel. We cannot conclude that the trial court's order would have a chilling effect on either trial preparation by defense counsel or on the attorney-client relationship such as to deny defendant his right to counsel.¹¹ To the contrary, we would expect diligent defense counsel to continue to interrogate potential prosecution witnesses whenever reasonably possible. Experienced members of the trial bar will and ordinarily should seek to ascertain what every witness will likely testify to at trial. Prudent practice, especially in a criminal case as serious as this one, calls for no less.¹²

To support his right to counsel argument, defendant relies on In re Terkeltoub, 256 F. Supp. 683 (S.D.N.Y. 1966), in which the trial court found appropriate an attorney's refusal to answer questions when he was asked to testify before a grand jury about his work defending a client in a criminal action. The ordered production to the prosecutor of the statements of the State's own witnesses here is a far cry from forcing an attorney to be a witness in a matter related to a client's defense.

As for due process, the United States Supreme Court has made it clear that

[t]he growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams [v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970)], nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals.

Wardius v. Oregon, 412 U.S. 470, 474, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973). Due process has less to do with the amount of discovery and more to do with "the balance of forces between the accused and his accuser."¹³ As previously observed, CrR 4.7 is a reciprocal criminal discovery provision, with some forms of discovery explicitly provided for and others left to the trial court's discretion, as in the case of the witness statements here ordered to be produced.

Finally, we address defendant's contention that the trial court's order violates the work product doctrine and attorney-client privilege. Recorded or transcribed interviews of the prosecution witnesses are unlikely to contain the "opinions, theories or conclusions" of defense counsel.¹⁴ To the extent they should somehow happen to do so, however, the in camera review ordered by the trial court in this case was expressly for the purpose of allowing it to excise matters properly excludable as work product or protected under the attorney-client privilege.

In conclusion, as the American Bar Association standards emphasize:

Generally, an attorney can be effective in a trial only to the extent that he has the information necessary to plan effectively. Quick wits may be the mark of the trial lawyer, but they are not always sufficient for the orderly exposition and testing of evidence, which is the purpose of a trial. Where planning is foreclosed by lack of information, as has long been the custom in much of criminal litigation, surprise and gamesmanship usually govern the conduct of the proceedings. The result is too often a general obfuscation of the issues. In spite of its obvious entertainment qualities, trial gamesmanship by way of obfuscatory tactics is generally offensive to the dignity of the court as an institution and destructive of respect for legal processes. Where life, liberty and protection of communities from crime are the stakes, gamesmanship is out of place.

ABA Standards Relating to Discovery and Procedure Before Trial, Std. 1.1, Commentary at 31 (Approved Draft, 1970). In the interest of reducing possible surprise and gamesmanship, we affirm the exercise of the trial court's discretion in this case; we uphold the trial court's order to the extent it ordered that all recorded or written statements of potential prosecution witnesses which were taken by defense counsel or the defense investigator be provided to the State.

Utter, Brachtenbach, Callow, and Durham, JJ., and Hamilton, J. Pro Tern., concur.

1 bindings of Fact and Conclusions of Law and Order Regarding State's Motion for Discovery, at 3.

2 See CrR 4.7(a)(l)(i).

3 United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975).

4 State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L. Ed. 2d 599, 107 S. Ct. 599 (1986); State v. Boehme, 71 Wn.2d 621, 633, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013 (1968).

5 Quoting ABA Standards Relating to Discovery and Procedure Before Trial, Std. 1.2, at 34 (Approved Draft, 1970).

6 See State v. Nelson, 14 Wn. App. 658, 664, 545 P.2d 36 (1975).

7 See also Nobles, at 230-31; People v. Small, 631 P.2d 148, 158 (Colo.), cert. denied, 454 U.S. 1101 (1981).

8 The defendant also argues that the trial court's order violates his rights guaranteed by article 1, sections 3, 9 and 22 (amendment 10) of the State Constitution. Because he does not argue that the state constitution provides greater protection than the federal constitution, we decline to further consider these state constitutional claims. State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988).

9 Nobles, at 234.

10 See also Lepley v. Lycoming Cy. Court of Common Pleas, 481 Pa. 565, 575-76, 393 A.2d 306 (1978); Small, at 158.

11 See Lepley, at 576-77.

12 State v. Williams, 80 N.J. 472, 484-85, 404 A.2d 34 (1979) (Schreiber, J., dissenting).

13 Wardius v. Oregon, 412 U.S. 470, 474, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973).

14 See State v. Strandy, 49 Wn. App. 537, 540, 745 P.2d 43 (1987), review denied, 109 Wn.2d 1027 (1988).