State Of Washington, V. Robert New, 80561-4

Background

Robert New, father of J.T., was charged with four counts of first-degree rape of a child (domestic) based on allegations J.T. reported in 2007 of abuse beginning when she was six.
J.T. had a 2007 medical exam in Surrey, B.C., by Dr. Fujiwara that produced colposcopy photos and a report; Washington investigators obtained those photos but the photos were later lost and an expert who reviewed them (Dr. Sugar) died before trial.
Initial charges were filed in 2008 in Washington; extradition from Canada began in 2012 and New was delivered to Washington in 2018; trial took place in 2019 after numerous continuances and an initial mistrial.
At trial the court excluded Dr. Fujiwara’s opinion and physical evidence related to the colposcopy after ruling the lost photos were not materially exculpatory and offering curative measures; New was convicted by jury and sentenced to 285 months to life.
On appeal New raised claims about lost evidence (CrR 8.3(b)), violation of the speedy-trial right, the right to be present when the court answered jury questions, prosecutorial misconduct, cumulative error, and imposition of community custody supervision fees.
The court affirmed the convictions, found no reversible constitutional violations, but remanded to strike discretionary supervision fees.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (New)	Held
Lost colposcopy photos (CrR 8.3(b))	Photos were not materially exculpatory; any prejudice was cured by excluding Dr. Fujiwara’s opinion and related physical evidence.	Photos were materially exculpatory (Dr. Sugar’s prior comments) and loss warranted dismissal for government misconduct.	Court: Photos were not materially exculpatory; exclusion cured prejudice; no CrR 8.3(b) dismissal.
Speedy-trial (Barker)	Delay attributable in part to extradition process and New’s opposition to extradition; Barker factors favor the State.	11-year delay (2008–2019) violated Sixth Amendment/right to speedy trial; delay prejudiced New.	Court: Threshold met but Barker balancing favors State; New failed to show actual prejudice; no violation.
Right to be present (jury question answered in his absence)	Court’s private phone conference with counsel was proper and New had notice; any objection waived.	Court’s discussion and answer to jury question while New absent violated his constitutional right to be present.	Court: Issue unpreserved (no timely objection); even on merits, conference was a noncritical legal matter—no violation.
Prosecutorial misconduct in closing argument	Prosecutor’s arguments drew reasonable inferences, were legally grounded (including statement on no corroboration), and did not vouch improperly; any impropriety was not flagrant.	Prosecutor appealed to jurors’ emotions, vouched for victim, misstated law, and denigrated defense—requiring reversal.	Court: Some emotional appeals were improper but not so flagrant as to be incurable; other complained-of remarks were permissible or authorized; no reversible misconduct.
Cumulative error	No significant errors to accumulate.	Accumulation of errors (presence + misconduct) denied fair trial.	Court: Defendant failed to establish individual errors; cumulative-error doctrine does not apply.
Community-custody supervision fees	Fees are discretionary; court may impose or waive.	Trial court stated it was waiving nonmandatory fees but then imposed supervision fees improperly.	Court: Remand to strike nonmandatory supervision fees consistent with trial court’s intent.

Key Cases Cited

Wittenbarger v. State, 124 Wn.2d 467 (1994) (due-process duty to preserve materially exculpatory evidence)
Arizona v. Youngblood, 488 U.S. 51 (1988) (loss of potentially useful evidence requires bad faith for due-process violation)
Barker v. Wingo, 407 U.S. 514 (1972) (speedy-trial balancing test)
Doggett v. United States, 505 U.S. 647 (1992) (presumption of prejudice for extraordinary post-indictment delay)
Michielli v. State, 132 Wn.2d 229 (1997) (CrR 8.3(b) dismissal requires arbitrary action or governmental misconduct plus prejudice)
Burden v. State, 104 Wn. App. 507 (2001) (lost physical evidence can be materially exculpatory if it would affirmatively establish innocence)
Ollivier v. State, 178 Wn.2d 813 (2013) (application of Barker factors in Washington)
Irby v. State, 170 Wn.2d 874 (2011) (defendant’s presence and when a prompt objection may be excused)
Gentry v. State, 125 Wn.2d 570 (1994) (prosecutorial remarks are waived absent timely objection unless flagrant and ill-intentioned)
Craven v. State, 15 Wn. App. 2d 380 (2020) (improper invitation to decide guilt by emotion rather than reason)