STATE v. FRANCO, 146 Wn. App. 1009 (2008)

THE STATE OF WASHINGTON, Respondent, v. MANUEL TOLENTINO FRANCO III, Appellant.

No. 58484-7-I.The Court of Appeals of Washington, Division One.
July 28, 2008.

Appeal from a judgment of the Superior Court for King County, No. 04-1-00239-3, George T. Mattson, J., entered March 12, 2007.

Affirmed by unpublished per curiam opinion.

[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]

PER CURIAM.

Dismissal under Criminal Rule 8.3 is warranted only when “arbitrary action or governmental misconduct” results in “prejudice affecting the defendant’s right to a fair trial.”[1] Because Manuel Tolentino Franco III fails to prove that the State’s alleged misconduct prejudiced his right to a fair trial, we affirm.

At age 13, L.F., who was born on June 24, 1989, disclosed to her teacher that Franco, her uncle, had sexually abused her. She alleged that the abuse started when she was five years old and ended when she was nine. L.F. alleged that the abuse occurred during naps she took at the apartment where her grandparents and uncle lived. She stayed at the apartment as part of a babysitting arrangement while her parents worked.

Detective Susan DiTusa investigated the allegations. She gathered sufficient information about the location where the alleged acts of abuse occurred, the time frame in which L.F. was at the apartment, and the nature of the abuse to submit a report to the prosecutor’s office.

The State charged Franco with two counts of first degree child molestation. At trial, L.F. testified. Her mother, Emma Franco, and father, Manuel Franco, Jr., also testified. Prior to the testimony of these witnesses, they reviewed certain materials provided to them by the prosecutor. These materials included unredacted portions of Detective DiTusa’s case file, copies of their own statements to police, and/or a transcript of their interviews. Defense counsel observed L.F. and her parents sharing and discussing their statements and other materials with each other.

At the close of the State’s case in chief, Franco moved to dismiss the charges under CrR 8.3(b), alleging prosecutor misconduct. Following a hearing, the trial judge denied the motion. A jury convicted Franco on all counts.

Franco appeals.

CRIMINAL RULE 8.3(b)
Franco claims the trial court abused its discretion when it did not dismiss his case under CrR 8.3(b). We disagree.

Before dismissal is appropriate under Criminal Rule 8.3(b), [2] the defendant must show both “arbitrary action or governmental misconduct” and “prejudice affecting the defendant’s right to a fair trial.”[3] The government’s misconduct need not be evil or dishonest in nature. Simple mismanagement is sufficient.[4] However, the defendant must show that actual prejudice, not merely speculative prejudice, affected his or her right to a fair trial.[5] We review the trial court’s decision for an abuse of discretion.[6]

Here, on the day L.F. and her parents testified, the deputy prosecuting attorney provided each of them with a packet of materials consisting of statements attributed to them. The prosecutor told them that the materials were intended to help refresh their memory for events that occurred almost three years earlier. L.F. and Emma’s packets contained documents from Detective DiTusa, and the prosecutor told them to focus on the highlighted portions. They were all instructed to not discuss their testimony with each other after testifying. However, the prosecutor failed to specifically instruct them not to read each other’s materials.

L.F.’s packet included copies of Detective DiTusa’s follow up report, a copy of the statement she gave Detective DiTusa, and a transcript of her interview. Emma Franco’s packet included a portion of the same follow up report that L.F. received, a copy of a different follow up report regarding a conversation between Emma and Detective DiTusa, and a transcript of her interview. The packet for Manuel Franco, Jr. included the transcript of his interview with Detective DiTusa.

While L.F. and her parents were reviewing these materials in the lobby of the prosecutor’s office, defense counsel inadvertently met them. He observed that L.F. and Emma were reading and discussing portions of the detective’s case file, including each other’s statements.

Franco moved for dismissal, alleging the prosecutor willfully gave substantial portions of the lead detective’s case file to witnesses who had not yet testified, violating CrR 4.7(h).[7]
He also alleged that the prosecutor failed to instruct the witnesses not to discuss the contents of their packets with each other.

At the hearing on the motion, the trial court agreed that the deputy prosecuting attorney shared more case file material with witnesses than was authorized and that this problem was compounded by a lack of adequate instructions to the witnesses to not share their materials with each other. The court acknowledged that these errors had “tremendous potential to unduly taint a case.”[8] However, the court also concluded that in this case, the evidence of misconduct was not sufficient to unduly compromise the fact-finding mission of the trial.

Assuming without deciding that the prosecutor’s conduct here is within the scope of CrR 8.3, Franco has failed to show prejudice to his right to a fair trial. Franco claims that the shared materials allowed L.F. and Emma to fill in an important gap in the State’s case — the location where the alleged acts of abuse occurred. He claims the location was a hotly contested issue at trial. Nothing in the record supports his assertion. It is true that Detective DiTusa testified that she did not confirm the exact address where the abuse occurred during her investigation. But it was not contested that the alleged abuse occurred at the apartment where her grandparents and uncle lived.

Franco next argues that his trial was prejudiced because the evidence that the prosecutor gave to L.F. and Emma was not cumulative. Specifically, he claims that L.F. learned addresses, which she had not supplied to police, indicating the locations where the alleged abuse occurred.

But Franco fails to show that anything L.F. or Emma may have learned from exchanging materials at the time of trial affected their testimony. For example, L.F.’s testimony that the abuse occurred while at the apartment where her grandparents and uncle lived was consistent with the statements she had earlier made to Detective DiTusa during the investigation. While it is possible that L.F. may have learned the exact address of the apartment from reviewing Emma’s materials, there was never any dispute that the abuse occurred there. Emma testified that she and L.F. shared their materials and reviewed and compared each other’s statements. But even if L.F.’s parents learned something new from her materials, there was nothing in their testimony that corroborated L.F.’s testimony about the acts of abuse. As the trial court correctly observed, “If this were a case in which the testimony of the child’s parents was important, the Court might be inclined to take a more critical look at what occurred in these transgressions.”[9] It was F.L.’s testimony that was central to the State’s case, not that of her parents.

Significantly, Franco extensively cross-examined all three witnesses after learning of the sharing of materials. This examination gave the jury ample opportunity to observe the credibility of these witnesses and to determine whether the shared materials affected their testimony. Nevertheless, the jury convicted him.

Franco fails in his burden to show prejudice to his right to a fair trial warranting dismissal under CrR 8.3(b). The court properly exercised its discretion by denying the motion to dismiss.

We affirm the judgment and sentence.