State v. Peña Fuentes, 179 Wash. 2d 808

The Sixth Amendment right to counsel includes private attorney-client conferences; eavesdropping by police on those conversations is highly prejudicial unless proven otherwise.
Peña Fuentes was charged with multiple counts of rape of a child and child molestation based on years of alleged abuse; trial occurred in October 2010.
After the trial, detectives eavesdropped on Peña Fuentes’s conversations with his attorney; the prosecutor learned of the eavesdropping and disclosed it.
A letter by L.P. (J.B.’s half-sister) and later a videotaped recantation prompted motions for new trial and discovery, including issues of witness tampering.
The trial court ordered a new trial on the child-rape count but dismissed it with prejudice due to police misconduct; other rulings on discovery and evidence were challenged on appeal.
The Court of Appeals largely affirmed the trial court’s rulings except for the double jeopardy ruling; this court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the prejudice presumption rebuttable?	Peña Fuentes; State bears burden to show no prejudice beyond doubt.	State argues defendant should bear burden to show prejudice when information isn’t disclosed to prosecutor.	Presumption rebuttable; State must prove absence of prejudice beyond a reasonable doubt.
Must discovery be allowed to determine prejudice from eavesdropping?	Discovery needed to assess whether posttrial eavesdropping affected motions and investigations.	Court denied discovery based on representations; no prejudice shown.	Remand for further discovery on potential prejudice.
Was L.P.'s letter properly limited to impeachment rather than ER 803(a)(5) recollection?	Letter should have been admitted for its truth as a recorded recollection, not just impeachment.	Limitation to impeachment appropriate; defenses failed to object.	Ruling affirmed; no error due to lack of objection and ineffective-assistance claims.
Did Peña Fuentes’s convictions violate double jeopardy?	Possible same-incident basis for rape and molestation may violate double jeopardy.	Counts involve separate, distinct acts; no double jeopardy violation.	Convictions upheld; acts were separate and distinct; no double jeopardy violation.
Was the supplemental clerk’s papers properly stricken on appeal?	Supplemental materials could be essential to the record.	Striking proper under RAP 9.11; unlikely to change outcome.	Affirmed strike; materials unlikely to affect decision.

State v. Cory, 62 Wn.2d 371 (1963) (presumed prejudice from eavesdropping; foundational right to confidential communications)
Weatherford v. Bursey, 429 U.S. 545 (1977) (no Sixth Amendment violation where no content communicated to others)
State v. Granacki, 90 Wn. App. 598 (1998) (burden on state to prove absence of prejudice beyond a reasonable doubt in eavesdropping context)
State v. Mutch, 171 Wn.2d 646 (2011) (whether separate acts support multiple convictions; manifest-apparent separate acts necessary)
In re Pers. Restraint of Fletcher, 113 Wn.2d 42 (1989) (multiple-claim framework for personal restraint petitions and related standards)
State v. Calle, 125 Wn.2d 769 (1995) (test for double jeopardy when offenses are identical in fact and law)
State v. French, 157 Wn.2d 593 (2006) (pattern of molestation and rape can support multiple charges when acts are separate)