In the Matter of the Personal Restraint of: Reuben D. Mulamba

FILED

DECEMBER 8, 2020

In the Office of the Clerk of Court

WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

IN THE MATTER OF PERSONAL )

RESTRAINT OF ) No. 35087-8-III

)

REUBEN D. MULAMBA, )

) UNPUBLISHED OPINION

)

)

FEARING, J. — In 2015, this court affirmed the convictions of Reuben Denis

Mulamba (Denis Mulamba) for two counts of assault of a child and two counts of

criminal mistreatment of a child. We now grant his personal restraint petition and

remand for a new trial on the four charges. We hold that Mulamba was entitled to a jury

unanimity instruction on the two charges of assault of a child because of multiple acts of

alleged assault against each child presented by the State to the jury. We also hold that the

State failed to disclose Brady material to Mulamba when it failed to disclose jail records

of the principal witness against him, the witness being the mother of the child victims.

These failures constituted constitutional error that imposed substantial and actual

prejudice on Mulamba.

FACTS

Denis Mulamba’s personal restraint petition and his earlier convictions arise from

his conduct toward the two young children of Ashley Eli: Stanley, born April 15, 2003,

No. 35087-8-III

In re Personal Restraint of Mulamba

and Jane, born February 24, 2007. We use fictitious names, rather than initials, to

humanize the children.

In the summer of 2011, Ashley Eli and her two children lived in Moses Lake. Eli

then met petitioner Denis Mulamba at a Moses Lake bar. Eventually Eli worked as a

nurse assistant at Golden Age Afh, an adult family home and care facility owned by

Mulamba’s mother.

In August 2011, Ashley Eli began dating Denis Mulamba, who attended Central

Washington University, but returned to Moses Lake on weekends to work at Golden Age

Afh. In October, Mulamba rented a two-bedroom apartment in Ellensburg. A month

later, Eli and Jane stayed at Mulamba’s apartment from Monday through Thursday, while

Stanley resided with his grandmother in Moses Lake.

Ashley Eli and Denis Mulamba’s relationship deteriorated in December 2011 due

in part to Mulamba’s criticism of Eli for failing to discipline her children. Despite the

souring, Eli, who lost employment, and her two children moved into Mulamba’s

Ellensburg apartment in early January 2012. Eli also failed to find employment in

Ellensburg. The arguments between Eli and Mulamba increased, with Mulamba telling

Eli he would be happier if she disciplined her children. Mulamba labeled Eli a “bad

mom.” Report of Proceedings (RP) at 138, State v. Mulamba, No.31314-0-III (Wash. Ct.

App.).

2

No. 35087-8-III

In re Personal Restraint of Mulamba

On January 13, 2012, after an argument, Ashley Eli sought to leave Denis

Mulamba’s Ellensburg apartment with her children, but Mulamba commandeered her

keys. After police intervened, Eli departed the apartment, but she returned the next day

because of belongings remaining inside. She and her children apparently continued to

reside in the apartment for weeks thereafter.

The undisputed evidence established grave injuries suffered by Jane and Stanley in

late January 2012. Ashley Eli claims that Denis Mulamba caused the injuries, while

punishing the children on many occasions. Mulamba claims Eli caused the injuries

during her punishment of the children. We relate some of the testimony of both. We

interpose some of the trial testimony of Stanley, who blamed Mulamba. The numerous

acts of assault generate the issue of jury unanimity posed by Mulamba’s personal

restraint petition.

In his trial testimony, Denis Mulamba declared unhappiness with Ashley Eli

because Eli’s daughter Jane often urinated in her pants and on his apartment floor. Eli

failed to discipline Jane for this crude behavior.

During trial, Ashley Eli admitted that, during January 2012, she spanked both

children, but she denied using a cable to whip them and denied that her spankings harmed

them. Eli initially testified that she first learned, on Saturday, January 21, that Denis

Mulamba physically punished her children. Later during trial, Eli recounted an incident

of January 14 when Jane wet the bed while staying at the Golden Age Afh in Moses

3

No. 35087-8-III

In re Personal Restraint of Mulamba

Lake. Eli then spanked Jane on the bottom with her hand, after which Mulamba

complained that the spanking insufficiently punished the child. Mulamba thereafter

assumed the punishment of both children. On January 14, Mulamba took Jane to the

garage of the adult family home. Eli averred that, despite Mulamba and Jane remaining

at length in the garage, she did not know what action Mulamba took and did not notice

any marks on Jane thereafter.

According to Denis Mulamba, during the week of January 16, 2012, he fell ill, left

the Ellensburg apartment, and went to Moses Lake to visit a doctor. On his return, he

spent the majority of his time at classes or the school library in order to avoid Eli and her

children.

According to Denis Mulamba, he, Ashley Eli, and the two children spent Saturday,

and Sunday, January 21 and 22, in Moses Lake. He testified that, on Saturday morning,

he directed Eli to take the children home to Ellensburg after discovering that Jane wet the

bed. Apparently Eli did not follow Mulamba’s directions to go to Ellensburg. Mulamba

denied punishing Jane during that weekend.

During trial testimony, Ashley Eli described several incidents of punishment

meted by Denis Mulamba on Stanley and Jane during the weekend of January 21 and 22.

On Sunday, January 22, while in Moses Lake at Golden Age Afh, Eli observed Mulamba

spank Stanley first with wood and then with a metal bar. She ordered Mulamba to stop

when she noticed the spanking caused a bruise on Stanley’s buttocks. That same night,

4

No. 35087-8-III

In re Personal Restraint of Mulamba

during the family’s return drive to Ellensburg, Mulamba, according to Eli, threatened to

pinch Stanley with pliers. During the trip, Mulamba beat both children with a belt when

stopped at a rest stop.

During trial, Stanley averred that Denis Mulamba began hitting him on the back

and legs with a belt two weeks after his family moved to Ellensburg. Mulamba once

pinched his chest with pliers.

Ashley Eli testified that, sometime during the week of January 23, she went to

spank Jane and first noticed bruising on her young body. During that week, according to

Eli, Denis Mulamba beat the children with a belt. She did not then protest because her

parents punished her siblings with a belt. Eli added that Mulamba later began use of an

electric cord or a coaxial cable. Mulamba also forced Stanley and Jane to perform “wall

sits.” If a child could not hold the sit for two minutes, Mulamba beat him or her and

demanded that the child start the wall sit again. Eli insisted that Mulamba ordered the

wall sits during three separate nights of the week of January 23. During her testimony,

Eli admitted that she gagged each child respectively on one occasion, while Mulamba

beat the child, in an attempt to stop the child’s crying.

During trial, Denis Mulamba recalled that, on Tuesday, January 24, Jane urinated

on the floor of the Ellensburg apartment. According to Mulamba, Eli, not him, punished

Jane by insisting that she wall sit and by hitting her on the hands with a wire. He did not

5

No. 35087-8-III

In re Personal Restraint of Mulamba

interfere because Jane was not his child. He left to study at the library. When he

returned he saw that Eli had shaved her head, an unsettling event to Mulamba.

During trial testimony, Denis Mulamba declared that Stanley, on the evening of

January 25, spilled a drink on the couch, and Ashley Eli instructed him to spank Stanley.

Mulamba spanked him with the cord of a phone charger. The next day, he spanked Jane

on her bottom with a belt after she urinated on the carpet.

Ashley Eli declared that, on January 26, Denis Mulamba threatened to burn Jane

with a clothes iron and that he beat the children with the iron’s cord. Nevertheless, she

never saw Mulamba burn Jane with the iron. She denied burning Jane. Stanley testified

that, although he later saw burns on Jane’s legs, he never saw Denis Mulamba burn her.

Stanley described an incident, during which Mulamba held an iron so close to his body

that he felt heat. Mulamba never burned him, however.

The quartet returned to Moses Lake on Friday evening, January 27. Denis

Mulamba testified that he worked the graveyard shift at Golden Age Afh on the night of

January 27 and did not see Eli or the children until the afternoon of Sunday, January 29.

He remembered that Jane appeared in pain that evening, and Eli asked him to retrieve

hydrogen peroxide. Mulamba then went to the library, where he remained until almost

midnight, and, on his return home, he told Eli to pack her belongings and leave the

apartment. He denied seeing Jane’s injuries on the evening of January 29.

6

No. 35087-8-III

In re Personal Restraint of Mulamba

According to Ashley Eli, on Sunday, January 29, Jane vomited her dinner. An

angry Denis Mulamba accused Jane of purposely vomiting. Mulamba coerced Jane to

perform a “wall sit,” and, when Jane fell from the wall, Mulamba beat her with the

coaxial cable. When Eli undressed her daughter for a bath, she discovered bruises

blotching the little girl’s body and black wounds on the child’s legs. At Eli’s direction,

Denis Mulamba bathed and cleansed the wounds with hydrogen peroxide.

Stanley declared during trial that, on January 29, Denis Mulamba threatened to

burn him, but presented him the option of being burned or going outside in the cold

without a coat. Stanley chose to go outside.

On the night of January 29, Ashley Eli, with her two children, left Denis

Mulamba’s apartment for a motel room. On January 31, after smelling sickness and

infection on Jane, Eli took the children to Aspen Women’s Domestic Violence Shelter.

She explained to Aspen supervisor Kathleen Coppin that she and her children needed

housing because her boyfriend beat the children. She declined to identify her boyfriend.

Coppin discussed the situation with Ellensburg Police Department Detective Tim Weed,

after which Coppin drove Eli, Jane, and Stanley to the police station for interviews.

At the Ellensburg police station, Ashley Eli again refused to identify her

boyfriend. Kathleen Coppin, who sat near Jane at the station, noticed her experiencing

pain. Coppin drove all three family members to Kittitas Valley Community Hospital’s

emergency room. At the hospital, Nurse John Yoder examined Jane and observed

7

No. 35087-8-III

In re Personal Restraint of Mulamba

bruising on Jane’s left side and arm and stripes on her back. Yoder smelled an aroma of

dead flesh and infection. After raising Jane’s nightgown and observing severe burns on

the girl’s legs, Yoder summoned Dr. David Frick.

While the emergency room waited for the arrival of Dr. David Frick, Erik Davis

tended to Stanley. Davis noticed “raised edge marks” that covered Stanley from his

shoulder down to his ankle. RP at 536. Stanley told Davis he had been whipped with

belts and wires and pinched with pliers.

Dr. David Frick examined Jane and assessed her condition as serious to critical.

Frick observed second and third degree burns on Jane’s thighs and buttocks which

appeared at least three days old. The burns would leave permanent ugly scars. Frick

quickly transferred Jane, by airlift, to Seattle’s Harborview Burn Center. During an

examination of Stanley, the young boy told Dr. Frick that his mother’s boyfriend abused

him with belts and wire. Frick feared head and liver injuries to Stanley and transferred

him by ambulance to Harborview.

Detective Tim Weed interviewed Ashley Eli at Kittitas Valley Community

Hospital. During the interview, Eli admitted she spanked each of the children with a

rainbow belt and folded television cable and that she gagged the children to quiet their

cries. She acknowledged striking Stanley with a metal track, purportedly to prevent her

boyfriend from doing so. After completing the interview, Weed arrested Eli for criminal

mistreatment based on her failure to obtain medical care for her children.

8

No. 35087-8-III

In re Personal Restraint of Mulamba

At Harborview Medical Center, Dr. Kenneth Feldman examined Jane and Stanley.

Dr. Feldman diagnosed Jane with a urinary tract infection, anemia, and kidney failure.

Feldman opined that Jane could have died from the kidney failure, if left untreated.

Feldman found Stanley severely injured throughout his entire young body, except his

head. In Dr. Feldman’s opinion, the injuries to both children were inflicted over several

days.

Child Protective Services employee Marti Miller, with Detective Tim Weed

present, interviewed Stanley and Jane on February 2. During the interview, Stanley told

Miller that Denis Mulamba had whipped him and his sister with a belt or wire if they did

not listen, used a pair of pliers to pinch his skin, one time ordered him to run after the car

while his mother drove, and threatened to burn him with an iron. After the car chase

incident, Mulamba told Stanley that he was “gonna get beat to death.” Clerk’s Papers

(CP) at 685. Stanley also told Miller that, before the interview, his mother instructed

Jane and him not to disclose Mulamba’s name. During her interview, Jane told Miller

that her mother directed her not to talk about her injuries, to say she had only been

spanked on the bottom with a hand, and not to disclose who spanked her. Jane also told

Marti Miller that her mother cleaned the house during some of the abuse.

PROCEDURE

The State of Washington charged Denis Mulamba with four counts all being

committed between January 13 and 29, 2012: (1) assault of a child in the first degree

9

No. 35087-8-III

In re Personal Restraint of Mulamba

under RCW 9A.36.120, with Jane as the victim; (2) assault of a child in the second

degree under RCW 9A.36.130, with Stanley as the victim; (3) criminal mistreatment in

the first degree under RCW 9A.42.020, with Jane as the victim; and (4) criminal

mistreatment in the second degree under RCW 9A.42.030 with Stanley as the victim.

The crime of assault entails the act of physically striking a child, while criminal

mistreatment involves the failure to procure needed medical treatment for a child. The

charging information omitted any reference to any particular act performed by Mulamba

that constituted any of the alleged crimes. The amended information also alleged all

alternative means, under the respective statutes, for the crimes of assault of a child in the

first degree and in the second degree.

In a separate proceeding, the State charged Ashley Eli with crimes stemming from

the abuse of her two children. Before trial on the charges against Denis Mulamba, Eli

reached a plea agreement with the State in her prosecution. In exchange for pleading

guilty to two counts of criminal mistreatment and providing testimony, in the Mulamba,

trial, consistent with her interviews with police, the prosecutor would recommend, to the

sentencing court, a ten-year prison sentence. Under the agreement, Eli would not be

sentenced until after the State knew whether Eli testified favorably in Mulamba’s trial.

Between February 2012 and beyond the trial of Denis Mulamba, Ashley Eli

resided at the Kittitas County Corrections Center. According to jail records, Eli caused

disruption and engaged in violent outbursts due to mental health illness, including

10

No. 35087-8-III

In re Personal Restraint of Mulamba

depression. Between May and October 2012, Ashley Eli received thirteen infractions for

possession of contraband, possession of a weapon, mailing notes between inmates,

inappropriate language, screaming, refusing orders, escape, banging on doors, resisting

restraints, refusing placement, attempting to riot, wreaking property damage, and self-

mutilation.

Ashley Eli suffered from anxiety while in jail. The county mental health

professional visited with Eli on numerous occasions in the jail. Eli frequently refused

meals and some days went without any food. She often pounded on her prison door. She

verbally abused jail officers. She spontaneously removed clothing. She repeatedly

smuggled razors into the jail.

Records produced by the jail include documents prepared by Central Washington

Comprehensive Mental Health. Some of the records are unreadable. A February 15,

2012, note from the mental health facility records that Ashley Eli suffers from depression

and maintains suicidal ideation.

In late May 2012, Ashley Eli hid a razor in her cell, which concealment raised

concerns about suicidal ideation. In a May 25, 2012, postcard to a friend, Eli indicated

that the officer who found the razor saved her life. A Comprehensive Mental Health

note, from June 20, 2012, documents Eli sitting in the fetal position and continuously

crying after a suicide attempt.

11

No. 35087-8-III

In re Personal Restraint of Mulamba

On August 10, 2012, Ashley Eli hoarded a razor under her sink. She stated then

that she often thinks of hurting herself.

Because of uncontrolled behavior on September 10, 2012, prison officers placed

Eli in a restraint chair. Because of her bouncing in and damage to the chair, officers

transferred her to a restraint board. On the night of September 10, Eli continuously

banged on her cell door for one and one-half hours. On September 12, Eli refused meals

and tore an infraction notice served on her.

On October 21, 2012, Ashley Eli slit her arm with a razor. Jails officials then

again removed all sharp objects from Eli. On October 23, Eli wrote a suicide note.

On October 26, a jail sergeant wrote a note that read, in part: Ashley Eli “cannot

be trusted by the way she hides, hordes, and lies. . . .” Supplemental declaration of Neil

M. Fox with Additional Exhibits (Fox supplemental declaration) at 215. The note

referred to Eli as being in a “downward spiral.” Fox supplemental declaration, at 215.

The sergeant wrote the note one week before Denis Mulamba’s trial and during the time

that the prosecuting attorney met with Eli to prepare her for trial.

Jail records indicate that the prosecutor met with Ashley Eli on multiple occasions

prior to trial. On October 22, 2012, the prosecuting attorney met with Eli. On October

23, the prosecuting attorney again met again with Eli. A jail note reads that Eli refused

instructions by officers when transported to the October 23 meeting, although the record

does not indicate whether she behaved badly in the prosecutor’s presence. In

12

No. 35087-8-III

In re Personal Restraint of Mulamba

postsentence attacks on her guilty plea, Eli asserted that the deputy prosecutor visited her

in jail, knew of her mental health illness, and told her things would be better in prison.

We do not know what, if any, records Denis Mulamba’s trial counsel demanded

from the State before trial. We do not know what, if any, records the State produced to

Mulamba’s attorney before trial. We know that the State provided trial counsel no

records from Ashley Eli’s incarceration.

A seven-day trial in Denis Mulamba’s prosecution began on October 31, 2012.

On November 1, Ashley Eli testified at trial while shackled and dressed in prison garb.

Eli testified that she agreed to plead guilty to two charges of criminal mistreatment based

on her delay in seeking medical help in exchange for a ten year sentence, on the condition

that she would testify for the State. She admitted that, under the agreement, if she failed

to testify she would receive a fifteen year sentence. She admitted that she agreed to

blame Denis Mulamba.

During trial, Ashley Eli informed the jury that she lied when she told a police

officer that she used a belt and a television cable to beat her children. She claimed that

she did not see Jane’s injuries until January 29 because, before that Sunday, Jane bathed

herself. Counsel presented Eli with a letter that showed, as early as January 28, she saw

open wounds after noticing blood in Jane’s underwear and that Eli then asked Denis

Mulamba to garner medical supplies to treat the wounds. During testimony, Eli claimed

that, despite leaving Mulamba’s apartment on January 29, she delayed taking her children

13

No. 35087-8-III

In re Personal Restraint of Mulamba

to the hospital for two days because of the expectation that medical professionals would

blame her for the injuries.

During trial, Jane identified Denis Mulamba as the person who hurt her, but she

failed to recall any details about her punishments other than that Mulamba struck her on

her bottom. She told the jury that neither her mother nor Mulamba ever burned her.

During trial, Denis Mulamba admitted that, during a police interview, he stated

that Ashley Eli granted him permission to spank the children on their bottoms with his

hand, belt, or a wire. He admitted to spanking the children, but denied ever using a

coaxial cable. He insisted that Eli whipped the children with the coaxial cable. Mulamba

denied using pliers to pinch Stanley, but admitted he pinched Stanley on the stomach area

and the pinching likely caused bruising. He denied burning Jane with the iron or

threatening Stanley with the iron, and he further denied seeing Eli inflict any injuries with

the iron.

During his testimony, Denis Mulamba told the jury that he thought Ashley Eli was

crazy and acting erratically in January. He averred that he spent most of the month trying

to remove her and her children from his apartment. He suggested that, because of his

work and school, he maintained scant contact with the children during late January and

that Eli had countless opportunities to injure the children in his absence. He assumed that

Eli caused all of the children’s serious injuries.

14

No. 35087-8-III

In re Personal Restraint of Mulamba

During cross-examination of Denis Mulamba, the prosecuting attorney established

Mulamba as being a convicted thief. The prosecutor posed a question to Mulamba about

his difficulty with the truth.

The trial court instructed the jury, with respect to count 1, first degree child assault

of a child:

To convict the defendant of the crime of Assault of a Child in the

First Degree as to [Jane], the State of Washington must have proved

beyond a reasonable doubt that:

(1) On or between the dates of January 13, 2012 and January 29,

2012, the defendant:

(a) committed the crime of Assault in the First Degree against [Jane]

OR

(b) intentionally assaulted [Jane] and recklessly inflicted great bodily

harm OR

(c) intentionally assaulted [Jane] and caused substantial bodily harm,

and the defendant had previously engaged in a pattern or practice of

assaulting [Jane] which had resulted in bodily harm that was greater than

transient physical pain or minor temporary marks or caused [Jane] physical

pain or agony that was equivalent to that produced by torture.

Personal Restraint Petition (PRP), Exhibit 9 at 36 (instruction 13). In jury instruction 27,

the court also instructed the jury that assault in the first degree, one of the alternative

methods of committing first degree assault of a child, constituted the act of assaulting

another and inflicting “great bodily harm,” while intending to inflict the great bodily

harm.

As to count 2, second degree assault of a child as to Stanley, the trial court

instructed the jury:

15

No. 35087-8-III

In re Personal Restraint of Mulamba

To convict the defendant of the crime of Assault of a Child in the

Second Degree as to [Stanley], the State of Washington must have proved

beyond a reasonable doubt that:

(1) On or between the dates of January 13, 2012 and January 29,

2012, the defendant:

(a) committed the crime of Assault in the Second Degree against

[Stanley] OR

(b) intentionally assaulted [Stanley] and caused bodily harm that was

greater than transient physical pain or minor temporary marks, and the

defendant had previously engaged in a pattern or practice of assaulting

[Stanley] which had resulted in bodily harm that was greater than transient

physical pain or minor temporary marks or caused [Stanley] physical pain

or agony that was equivalent to that produced by torture,

...

PRP, Exhibit 9 at 40 (instruction 17). Jury instruction 28 defined for the jury the crime of

second degree assault, one of the alternative means of committing second degree assault

of a child, as follows:

A person commits the crime of Assault in the Second Degree when

he or she intentionally assault another and recklessly inflicts substantial

bodily harm, or assaults another with a deadly weapon, or knowingly

inflicts bodily harm which by design causes such pain or agony as to be the

equivalent of that produced by torture.

PRP, Exhibit 9 at 51 (instruction 28). At trial, Denis Mulamba never objected to jury

instructions 13, 17, 27, or 28.

During summation, the State’s attorney told the jury that it could find Denis

Mulamba guilty of the count of assault against Jane and the count of assault against

Stanley based either on a pattern of conduct or on a discrete act. The prosecuting

attorney commented:

16

No. 35087-8-III

In re Personal Restraint of Mulamba

I’ll explain the first degree count assault in the—of a child in the

First Degree gives you two options. To convict him essentially actually to

[two] alternatives. You could find that he committed one count of assault

in the first degree because that’s how it reads to be convicted of the crime

of assault of a child first degree either find that he committed accounts of

assault in the First Degree which could be one iron imprint, one third

degree burn, one time or you go back there and you’re I’m [sic] not all

certain about that. But you do know one thing you do know that over a

period of time he was beating go those kids and whipping those kids and

that’s with regards to [Jane]. Even [Stanley] it arose to a pattern of

inflicted injury over a period of time. And so that’s your second

alternative. You can find just one count of assault he’d done or I am not so

certain on the iron but when you take it all in its entirety, yeah. We are

certain he was part of the greater degree and over the pattern and the period

of time, particularly, between Monday the 23rd to Friday the 27th he did

the majority and you can find him guilty as charged. For [Stanley] it’s

similar except it’s you either find him guilty for one incident involving an

assault in the second degree i.e. taking a co axle [co-axial] cable. [Stanley]

can’t hold that wall sit and one beating 19 times on his left leg creating

substantial bodily harm. A little bit less than the bodily harm that [Jane]

incurred or you don’t find there’s one incident and that he contributed over

a period of time that he simply contributed to the injuries over a period of

time.

RP at 1077-78.

During the State’s closing statement, the State’s counsel compared the credibility

of Denis Mulamba with Ashley Eli. He often attacked the credibility of Mulamba by

juxtaposing his trial testimony with inconsistent statements to law enforcement officers.

In turn, counsel bolstered Eli’s credibility:

But in evaluating the credibility of Ashley within the world she lives

in are those admissions of a woman attempting to minimize her culpability

or a description a real life description of how this is going down.

RP at 1084. Counsel added:

17

No. 35087-8-III

In re Personal Restraint of Mulamba

Because the case doesn’t just hinge upon Ashley Eli but yet I would

submit to you there’s a stream of evidence and truth that flows through her

testimony.

RP at 1084.

In closing statement, defense counsel attempted to rebut the State’s counsel’s

comments about Ashley Eli’s credibility. Mulamba’s attorney intoned:

But the prosecutor starts off by talking how Ashley should still be

believed. Who are we kidding? He is saying she’s nuts. She’s crazy but

we should believe her when she says she can’t remember if she saw [Jane]

wounded on Friday or Saturday or Sunday.

RP at 1099-1100.

The jury found Denis Mulamba guilty of first degree child assault of Jane, second

degree child assault of Stanley, first degree criminal mistreatment of Jane, and third

degree criminal mistreatment of Stanley. The jury also returned special verdicts for

counts 1, 2, and 3 by answering “yes” to the question of whether Mulamba knew or

should have known that the “victim of the current offense was particularly vulnerable or

incapable of resistance.” CP at 479-80, 483.

On November 15, 2012, Eli wrapped a sheet around her neck and tied the sheet to

holes in a top bunk. Jail officers found her leaning back and straining the sheet against

the back of her neck. Her face had turned blue. Officers untied the sheet and placed her

on a restraint board. She refused to speak to officers. The jail placed Eli on suicide

watch. In the coming days, she refused food and her medications.

18

No. 35087-8-III

In re Personal Restraint of Mulamba

On direct appeal, Denis Mulamba challenged the admission of child hearsay, the

finding of competency of Jane to testify, the admissibility of testimony from a social

worker, and the sufficiency of the evidence to find vulnerability in Stanley. This court

affirmed the convictions and sentence. State v. Mulamba, noted at 188 Wn. App. 1013

(2015) (unpublished).

Denis Mulamba timely filed a personal restraint petition. The petition attached jail

records for Ashley Eli, obtained post-conviction, which Mulamba contends the State

failed to disclose despite a duty to disclose. Petitioner’s counsel obtained the records

through a public records act request accompanied by a release of information executed by

Eli.

LAW AND ANALYSIS

In this personal restraint petition, Denis Mulamba challenges both his convictions

and his sentence. He seeks a new trial on four grounds: prosecution in Kittitas County

violated the Washington and federal constitutional vicinage requirements because some

of the alleged acts of assault occurred in Grant County; contacts between the prosecuting

attorney’s office and court staff about the number of people to call for the venire reduced

the randomness of the jury pool; the State violated Brady v. Maryland principles when

failing to disclose, to his counsel, jail records of Ashley Eli; and the trial court’s

instructions to the jury breached his constitutional right to a unanimous jury verdict.

Acceptance of his challenge to the lack of a jury unanimity instruction would only

19

No. 35087-8-III

In re Personal Restraint of Mulamba

reverse convictions for first degree assault of a child and second degree assault of a child.

Acceptance of any of the remaining three challenges would reverse all four convictions.

We agree that the State withheld Brady documents to the prejudice of Mulamba.

We therefore remand for a new trial on all charges. We also discuss Mulamba’s jury

unanimity challenge and his vicinage challenge since those challenges could repeat

themselves on remand. We hold that prosecution in Kittitas County did not violate the

vicinage requirement. We rule, however, that jury instructions denied Mulamba his

constitutional right to a unanimous jury verdict. We do not address Mulamba’s challenge

to the contact between the prosecuting attorney’s office and the court administration

office about the jury pool or Mulamba’s challenges to his sentencing because, assuming

any error, the error will likely not be repeated.

The dissent refers to our ruling on the unanimous jury verdict as dicta, implying

that the ruling need not be followed. Nevertheless, appellate courts routinely address

issues unnecessary to resolve the appeal when the court remands for a new trial and the

second trial will likely raise the issue again. The appellate court, in such instance,

expects the ruling to be followed by the trial court, rather than being considered dicta.

To prevail in a personal restraint petition, a petitioner must establish (1) a

constitutional error that resulted in actual and substantial prejudice, or (2) a fundamental

defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of

justice. In re Personal Restraint of Dove, 196 Wn. App. 148, 154, 381 P.3d 1280 (2016);

20

No. 35087-8-III

In re Personal Restraint of Mulamba

see also In re Personal Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011).

In his petition, Denis Mulamba relies only on constitutional error. A personal restraint

petition is not a substitute for a direct appeal, and the availability of collateral relief is

limited. Personal Restraint of Dove, 196 Wn. App. at 153. Relief by way of a collateral

challenge to a conviction is extraordinary, and the petitioner must meet a high standard

before this court will disturb an otherwise settled judgment. Personal Restraint of Coats,

173 Wn.2d at 132. Mulamba meets this high standard.

Vicinage

Denis Mulamba contends that we must vacate all of his convictions because some

of his conduct alleged to be criminal occurred in a county other than Kittitas County, the

county in which all jurors resided. Mulamba grounds this argument on the constitutional

vicinage requirement, which he differentiates from venue rules.

Venue demands the accused be tried in the county in which he allegedly

committed the crimes. Vicinage requires that the jurors be drawn from the county, in

which the crimes occurred. State v. Howell, 40 Wn. App. 49, 51, 696 P.2d 1253 (1985).

Stated slightly differently, venue refers to the location where the trial is held, whereas

vicinage refers to the area from which the jury pool is drawn. Price v. Superior Court, 25

Cal. 4th 1046, 1054, 25 P.3d 618, 108 Cal. Rptr. 2d 409 (2001). Nevertheless, the

concepts of venue and vicinage generally intertwine and the distinction is usually

unimportant, as a jury pool ordinarily is selected from the area in which the trial is held.

21

No. 35087-8-III

In re Personal Restraint of Mulamba

State v. Howell, 40 Wn. App. at 51; Price v. Superior Court, 25 Cal. 4th at 1054. Still,

the accused’s trial could proceed in one county’s courthouse, with the jury selected from

another county’s denizens.

Denis Mulamba underlines that some of the acts, for which the State prosecuted

him, occurred in Kittitas County, but, because some of the alleged assaults transpired in

Grant County, we cannot be certain that a Kittitas County jury did not convict him for a

crime occurring partly, if not entirely, in Grant County. The State, while citing secondary

sources and one Washington Supreme Court decision that describes the nature of

vicinage, argues that Denis Mulamba’s crimes occurred in Kittitas County or,

alternatively, that most of the crimes occurred in Kittitas County. The State does not

recognize that the jury could have based all of Mulamba’s convictions solely on an act

occurring in Grant County.

The Washington Constitution provides:

In criminal prosecutions the accused shall have the right . . . . to have

a speedy public trial by an impartial jury of the county in which the offense

is charged to have been committed.

CONST. art. I, § 22 (emphasis added). This constitutional provision seeks to guarantee the

right to a trial by a jury in the county, in which the crime was committed, by defining the

vicinage as a county. State v. Ashe, 182 Wash. 598, 603, 48 P.2d 213 (1935), overruled

on other grounds by State v. Goodwin, 29 Wn.2d 276, 186 P.2d 935 (1947).

22

No. 35087-8-III

In re Personal Restraint of Mulamba

The right to be tried where the crime occurred serves to prevent the unfairness and

hardship involved when the government prosecutes an accused in a remote place. United

States v. Cores, 356 U.S. 405, 407, 78 S. Ct. 875, 2 L. Ed. 2d 873 (1958). Presumably

the defendant would desire to be tried where witnesses and evidence are accessible and

where he might gain the benefit from a good character, assuming he established one.

State v. Holloway, 19 N.M. 528, 146 P. 1066, 1068 (1914). One court disagreed that the

vicinage right protects individual rights. Instead, the court wrote that the vicinage right is

not a personal right of the defendant because it belongs in part to the public to vindicate

the community’s right to sit in judgment on crimes committed within its territory. People

v. Guzman, 45 Cal. 3d 915, 936-37, 755 P.2d 917, 248 Cal. Rptr. 467 (1988), overruled

on other grounds by Price v. Superior Court, 25 Cal. 4th 1046 (2001).

Washington courts have recognized that the acts attendant to a crime may span

multiple counties such that the vicinage may lie in more than one county. State v. Ashe,

182 Wash. 598, 603-04 (1935). In turn, venue may be proper in multiple counties

depending on the nature of the charged crime. State v. Howell, 40 Wn. App. 49, 51-52

(1985). When the State alleges that the crimes occurred in one county, the State satisfies

the vicinage rule if the jury is empaneled from individuals living in that county, even if

defendant’s offense spanned more than one county such that venue may have been proper

in more than one county. State v. Howell, 40 Wn. App. at 51-52.

23

No. 35087-8-III

In re Personal Restraint of Mulamba

In State v. Ashe, 182 Wash. 598 (1935), the state Supreme Court held that a

prosecution in King County for placing a girl in a house of prostitution did not violate

Washington’s constitutional vicinage requirement, despite Leo Ashe placing the victim

into a Pierce County professional home. Ashe took custody of the girl in King County

and transported her from King County to Pierce County. The court reasoned that an

ongoing crime can be committed in more than one county and can be prosecuted in any

county in which an act occurred without violating the vicinage requirement.

In State v. Howell, 40 Wn. App. 49 (1985), this court applied the holding in State

v. Ashe to a prosecution for theft of livestock. Harvey Howell stole cattle from a ranch in

Douglas County. He transported the cattle to Grant County and on to Okanogan County,

where he tried to sell the cows at auction. The State prosecuted Howell in Okanogan

County. After a guilty verdict, the trial court arrested judgment because the State had

failed to prove venue in Okanogan County since the theft occurred in Douglas County.

This court reversed and held that venue could include a county to which Howell

transported the cattle since the criminal statute covered the conduct of transporting,

concealing, and withholding the cattle. Although this court focused on the concept of

venue, we also held that the prosecution in Okanogan County did not violate the

Washington constitution’s vicinage provision.

State v. Ashe and State v. Howell possess a critical distinction from the prosecution

of Denis Mulamba. Harvey Howell and Leo Ashe committed one crime that constituted

24

No. 35087-8-III

In re Personal Restraint of Mulamba

a series of related acts. Although the State charged Mulamba with only one count of

assault against Stanley, one count of assault against Jane, one count of criminal

mistreatment against Stanley, and one count of criminal mistreatment against Jane, he

engaged in distinct acts of assault separated by time and place and he failed to procure

medical treatment on distinct occasions. The State told the jury that it could convict

Mulamba if it found him guilty of only one of several distinct assaults and one of the

assaults could have occurred in Grant County, not Kittitas County. Neither party cites the

court to any decision that addresses vicinage when multiple criminal acts occurred in

different counties.

Denis Mulamba argues that the state high court’s ruling in City of Bothell v.

Barnhart, 172 Wn.2d 223, 257 P.3d 648 (2011) demands automatic reversal. The city of

Bothell charged James Barnhart, in Bothell Municipal Court, with stalking. Although

Bothell encompasses portions of both Snohomish County and King County, the alleged

stalking occurred entirely within Snohomish County. Pursuant to RCW 2.36.050, the

Bothell Municipal Court drew its jury panel from Bothell, regardless of the county in

which jurors resided. Thus, the jury included two residents of King County and four

residents of Snohomish County. The defendant raised a for-cause challenge to the two

King County jurors, which challenge the municipal court denied. On appeal, the

defendant argued that the impaneling of the King County residents violated article I,

section 22 of the Washington Constitution because two jurors were not from Snohomish

25

No. 35087-8-III

In re Personal Restraint of Mulamba

County, where he allegedly committed the crime. After considering the plain meaning of

“county” in article I, section 22, the Supreme Court held that the municipal court violated

the defendant’s article I, section 22 rights when the judge impaneled King County jurors

over the defendant’s objection because the State charged him with a crime only

committed in Snohomish County.

Like State v. Howell and State v. Ashe, City of Bothell v. Barnhart does not

directly control Denis Mulamba’s vicinage claim. In City of Bothell, the defendant’s

alleged conduct was confined to one county, and thus it was improper for individuals

from another county to be on the jury. The majority of Denis Mulamba’s multiple acts

occurred in Kittitas County. No jurors in Denis Mulamba’s trial resided in a county

where none of Mulamba’s conduct occurred.

Denis Mulamba did not assert the vicinage clause before the trial court. A

California court has held that the failure to raise proper vicinage at trial waives any

violation of the right. People v. Gbadebo-Soda, 38 Cal. App. 4th 160, 170-71, 45 Cal.

Rptr. 2d 40 (1995).

We deny Denis Mulamba’s personal restraint petition on the basis of art. 1 § 22’s

vicinage requirement for several reasons. First, the Washington law of the vicinage

requirement is underdeveloped and Mulamba cites no case that holds that the

constitutional provision is violated if some of the alleged multiple criminal acts occurred

in another county.

26

No. 35087-8-III

In re Personal Restraint of Mulamba

Second, Denis Mulamba does not contend that he received an unfair trial as a

result of Kittitas County jurors hearing charges based on conduct in Grant County. We

also know no reason why Grant County jurors would be more sympathetic to his defense

of the prosecution than would Kittitas County jurors. Along these lines, vicinage is not a

right that is fundamental and essential to the purpose of the constitutional right to jury

trial. Price v. Superior Court, 25 Cal. 4th 1046, 1048. Thus, Mulamba has not

established a constitutional error that resulted in actual and substantial prejudice, a

prerequisite to our granting a personal restraint petition. In re Personal Restraint of

Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011).

Third, although there may lack continuity between the various assaults, the two

victims remained the same in each county. Mulamba resided in Ellensburg, the county

seat of Kittitas County. Many professional witnesses resided in Kittitas County.

Mulamba was not inconvenienced by a trial of all charges in Kittitas County. One court

has noted that repeat victims and witnesses to crimes should not be required to testify in

two trials in different counties when the same defendant committed the crimes. Price v.

Superior Court, 25 Cal. 4th 1046, 1055 (2001).

Fourth, Mulamba has not explained how a favorable ruling would further the

purposes behind the vicinage constitutional provision. Fifth, Mulamba may have waived

the right to challenge vicinage by failing to assert the vicinage rule at trial.

27

No. 35087-8-III

In re Personal Restraint of Mulamba

Denis Mulamba cites, in his petition, the vicinage provision in the Sixth

Amendment to the United States Constitution, which affords the accused the right to an

“impartial jury of the State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law.” Nevertheless, Mulamba

provides no analysis as to the application of this federal constitutional provision.

The “district” mentioned in the Sixth Amendment is the district established by

Congress for United States district courts. United States v. Grisham, 63 F.3d 1074, 1079

(11th Cir. 1995). Both Kittitas County and Grant County lie within the same state and

the same federal judicial district, the Eastern District of Washington. Anyway, courts

universally hold that the vicinage clause of the Sixth Amendment does not apply to state

court prosecutions. Stevenson v. Lewis, 384 F.3d 1069, 1071-72 (9th Cir. 2004); Caudill

v. Scott, 857 F.2d 344, 345-46 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593, 595-96

(5th Cir. 1986); People v. Gayheart, 285 Mich. App. 202, 776 N.W.2d 330, 345 (2009);

Price v. Superior Court, 25 Cal. 4th 1046, 1069 (2001); Garza v. State, 974 S.W.2d 251,

259 (Tex. App. 1998); People v. Pascarella, 92 Ill. App. 3d 413, 417-18, 415 N.E.2d

1285, 48 Ill. Dec. 1 (1981).

Denis Mulamba also claims his trial counsel performed ineffectively when failing

to assert the vicinage requirement. We reject this argument principally because Mulamba

shows no prejudice by reason of any failure. Mulamba does not even argue prejudice. A

defendant claiming ineffective assistance of counsel bears the burden of establishing that

28

No. 35087-8-III

In re Personal Restraint of Mulamba

counsel’s performance was deficient and that the deficient performance resulted in

prejudice. State v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045 (2017). In People v.

Gbadebo-Soda, 38 Cal. App. 4th 160 (1995), the California court ruled that trial counsel

was not ineffective per se by failing to raise vicinage as a defense.

Brady Materials

After trial, Denis Mulamba obtained, through a public records request, Ashley

Eli’s jail records, which revealed that she engaged in disruptive and violent misconduct,

attempted suicide, and incurred many jail infractions in the months prior to Mulamba’s

trial. Her conduct in jail could lead to additional criminal charges. Mulamba contends

the State violated Brady by failing to disclose the jail records because of their impeaching

nature. Alternatively, he contends his trial counsel was ineffective for failing to obtain

these records and employ them at trial.

The prosecution holds a duty, under the due process clause, to disclose to the

defense both exculpatory evidence and impeachment evidence favorable to a criminal

defendant. United States v. Bagley, 473 U.S. 667, 676-77, 105 S. Ct. 3375, 87 L. Ed. 2d

481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The law labels the information and records covered under this duty to disclose as Brady

material after the United States Supreme Court’s landmark decision in Brady v.

Maryland, 373 U.S. 83 (1963). The Brady rule departs from a pure adversary model of

litigation and recognizes that the prosecuting attorney acts, not as counsel for an ordinary

29

No. 35087-8-III

In re Personal Restraint of Mulamba

party to a controversy, but as the representative of a sovereign whose interest in a

criminal prosecution is not one of winning the case, but ensuring that justice prevails.

Brady v. Maryland, 373 U.S. at 87-88.

To establish a Brady violation, a defendant must demonstrate the existence of each

of three elements: (1) the evidence at issue must be favorable to the accused, either

because it is exculpatory or impeaching, (2) the evidence must have been suppressed by

the State, either willfully or inadvertently, and (3) prejudice must have ensued. Strickler

v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999); State v.

Mullen, 171 Wn.2d 881, 895, 259 P.3d 158 (2011). For convenience sake, we label the

three elements as the “favorable,” “suppressed,” and “prejudice” prongs. We address

each element separately. The State, in response to Denis Mulamba’s petition, does not

explicitly address the first two of the Brady bunch of elements. We analyze each

anyway.

This court’s review of Brady claims involves a mixed question of fact and law.

State v. Davila, 184 Wn.2d 55, 74, 357 P.3d 636 (2015). The first two Brady factors of

favorable and suppressed evidence are factual questions. In re Personal Restraint of

Stenson, 174 Wn.2d 474, 488, 276 P.3d 286 (2012). Nevertheless, because the trial court

has not addressed the factors of favorability and suppression, we have no trial court

findings to which to defer. The third Brady factor of prejudice is a question of law and

fact. In re Personal Restraint of Stenson, 174 Wn.2d at 488. But the court reviews de

30

No. 35087-8-III

In re Personal Restraint of Mulamba

novo the ultimate constitutional question of whether the State’s failure to disclose certain

information resulted in a due process violation. State v. Davila, 184 Wn.2d at 75.

Because of the federal constitution underpinnings of the Brady rule, we rely extensively

on United States Supreme Court and federal appellate court decisions.

Favorable Evidence

Under Brady, the prosecution has a duty to seek out exculpatory and impeaching

evidence held by government actors and to forward the evidence to the defense. Kyles v.

Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Oddly the Brady

rule only requires disclosure of information and records favorable to the defense. An

exacting defense attorney would also wish to learn damning information in order to better

respond to the harmful evidence during trial.

In his personal restraint petition, Denis Mulamba focuses on Ashley Eli’s Kittitas

County jail records as impeachment, not exculpatory, material. Impeachment evidence

falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676 (1985). The

jury’s estimate of the truthfulness and reliability of a given witness may determine guilt

or innocence, and a defendant’s life or liberty may depend on such subtle factors as the

possible interest of the witness in testifying falsely. Napue v. Illinois, 360 U.S. 264, 269,

79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

Denis Mulamba highlights Ashley Eli’s agreement to turn State’s witness and the

importance of Eli’s testimony to the State. As a result of testifying, Eli reduced her

31

No. 35087-8-III

In re Personal Restraint of Mulamba

possible sentence by five years. She did not expressly agree with the State to tell the

truth, but rather to testify consistently with a story that implicated Mulamba. The State

does not deny that Ashley Eli’s jail records implicated her credibility and favored Denis

Mulamba.

If the State’s case depends on the testimony of a cooperating witness, the State

must disclose any information regarding the witness’s credibility. Benn v. Lambert, 283

F.3d 1040, 1054 (9th Cir. 2002). The obligation to disclose information looms of greater

importance when the State relies on a cooperating witness who garners immunity in

exchange for his or her testimony, since criminals who are rewarded by the government

for their testimony are inherently untrustworthy. Carriger v. Stewart, 132 F.3d 463, 479

(9th Cir. 1997). Criminals, who are rewarded by the government for their testimony, are

inherently untrustworthy, and their use triggers an obligation to disclose material

information to protect the defendant from being the victim of a perfidious bargain

between the state and its witness. Carriger v. Stewart, 132 F.3d at 479; United States v.

Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir. 1993). Prosecutors must take all

reasonable measures to safeguard the system against treachery, and this responsibility

includes the duty to deliver to the defense in discovery all material information casting a

shadow on a government witness’s credibility. United States v. Bernal-Obeso, 989 F.2d

at 333-34.

32

No. 35087-8-III

In re Personal Restraint of Mulamba

One category of impeaching evidence is evidence of a plea agreement between the

witness and the State. Benn v. Lambert, 283 F.3d 1040, 1054-58 (9th Cir. 2002). The

State did not withhold information of the agreement, under which the State agreed to

reduce charges against Ashley Eli. Nevertheless, we emphasize the plea agreement to

show the importance of full access to impeachment material concerning Eli.

The Kittitas County Corrections Center records establish that Ashley Eli engaged

in conduct inside the jail that led to jail infraction notices and could lead to criminal

charges. Eli could face prosecution for possession of contraband inside a jail, possession

of a weapon inside a jail, escape, resisting restraints, and causing damage to jail property.

Brady material encompasses unresolved charges and exposure to future criminal charges.

Benn v. Lambert, 283 F.3d at 1054-58. The State must obtain and disclose information

about a cooperating witness’s misconduct and her exposure to criminal charges. Benn v.

Lambert, 283 F.3d at 1054-58. The obligation includes the duty to disclose unresolved

criminal charges, whether formally charged or not, since even possible charges that are

not being actively prosecuted are subject to cross-examination due to the witness’s

subjective fear of future prosecution. United States v. Price, 566 F.3d 900, 911-14 (9th

Cir. 2009); Blunt v. United States, 863 A.2d 828, 834-35 (D.C. App. 2004). Evidence

that the authorities knew of criminal behavior of the witness but did not prosecute him or

her is relevant to show bias. Benn v. Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002).

33

No. 35087-8-III

In re Personal Restraint of Mulamba

Therefore, contrary to the dissent’s comment, the jail records should not be characterized

as simply irrelevant, inadmissible, and collateral impeachment or character evidence.

Other impeaching evidence includes instances of dishonesty and the witness lying.

Benn v. Lambert, 283 F.3d at 1054-58. Accordingly, evidence that a State witness lied

may be favorable impeachment evidence for Brady purposes. State v. Gregory, 158

Wn.2d 759, 798, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., Jr.,

181 Wn.2d 757, 336 P.3d 1134 (2014). An October 26, 2012 note from a jail sergeant

declared that Eli could not be trusted because of how she hides, hoards, and “lies.” Fox

supplemental declaration at 215.

Another category of impeaching evidence is information that the witness suffers

from a mental health illness. The government is generally under an obligation to disclose

evidence that bears on the credibility of a witness, including evidence of poor mental and

emotional health that may be provable on cross-examination. United States v. Pryce, 291

U.S. App. D.C. 84, 938 F.2d 1343, 1345-46 (D.C. Cir. 1991). The State must reveal

psychiatric evidence raising questions about the witness’s biases and the reliability of his

or her testimony. Fuentes v. Griffin, 829 F.3d 233, 248 (2d Cir. 2016). The prosecution

must disclose its witness’s mental health history. Fuentes v. Griffin, 829 F.3d at 248;

Browning v. Trammell, 717 F.3d 1092, 1105-06 (10th Cir. 2013). Evidence that

impeaches the witness’s ability to recollect or perceive events is relevant. Benn v.

34

No. 35087-8-III

In re Personal Restraint of Mulamba

Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002); United States v. Moore, 923 F.2d 910, 913

(1st Cir. 1991).

Government Withholding

Denis Mulamba must also show that the State either willfully or inadvertently

suppressed such evidence. “Suppression,” “withholding,” and “failure to disclose” hold

the same meaning for Brady purposes. Benn v. Lambert, 283 F.3d at 1053 (9th Cir.

2002). Since all Brady material is withheld either willfully or inadvertently, the

statement of the rule lacks importance. A better statement of the rule would be that the

government possesses or has access to the records such that it must divulge the records

and information. We could call this second element the “custody” prong. Although the

State of Washington does not contend that it did not possess the Kittitas County

Corrections Center records, we briefly address this second prong.

The prosecution “suppresses” evidence, for purposes of Brady, if others acting on

behalf of the government hold the evidence. Strickler v. Greene, 527 U.S. 263, 283 n.23

(1999); Kyles v. Whitley, 514 U.S. 419, 438 (1995); In re Personal Restraint of Lui, 188

Wn.2d 525, 565, 397 P.3d 90 (2017); State v. Lord, 161 Wn.2d 276, 292, 165 P.3d 1251

(2007). Brady does not permit the government to divide itself into separate entities for

purposes of records custody. United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973),

overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984). The

Brady duty recognizes that the prosecution sits in a unique position to obtain information

35

No. 35087-8-III

In re Personal Restraint of Mulamba

known to other agents of the government. Kyles v. Whitney, 514 U.S. at 438-40;

Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997)

Information known to the police must be disclosed. United States ex rel. Smith v.

Fairman, 769 F.2d 386, 391-92 (7th Cir. 1985). In State v. Davila, 184 Wn.2d at 71

(2015), our high court held that information concerning a crime laboratory employee fell

under Brady. In one federal case, the court even faulted the government for failing to

provide the personnel file for a key witness who worked for the United States Postal

Service. United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973).

Courts consistently hold that the prosecuting attorney must disclose the jail

records of a cooperating witness. United States v. Price, 566 F.3d 900, 913 (9th Cir.

2009); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997); United States v. Santiago,

46 F.3d 885, 894 (9th Cir. 1995). In United States v. Burnside, 824 F. Supp. 1215, 1252,

1254 (N.D. Ill. 1993), the court ruled that the knowledge of the corrections center

warden, among other officers, was imputed to the government for purposes of Brady.

Denis Mulamba argues that the prosecuting attorney’s office had knowledge of the

conduct of Ashley Eli inside the Kittitas County jail. We deem what, if any, knowledge

the State’s attorney gained to be irrelevant. Because the jail was a government actor, the

jail’s knowledge and records are deemed within the custody of the State and its counsel.

The good faith or bad faith of the State is irrelevant when material impeachment evidence

is withheld from the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963).

36

No. 35087-8-III

In re Personal Restraint of Mulamba

The State suggests that Denis Mulamba, before trial, could have garnered the jail

records or interviewed Ashley Eli and determined her mental condition, such that it

lacked any obligation to volunteer the information. In turn, the State focuses on whether

defense counsel was ineffective for failing to request or obtain the jail records.

Washington decisions may support this argument. Along with the defense, the dissent

suggests that Ashley Eli’s jail records were available to Denis Mulamba because Eli was

his co-defendant. Nevertheless, Eli was not a co-defendant in the same prosecution. We

also are unaware of any rule that automatically makes available, to an accused, a co-

defendant’s mental health and jail records.

According to Washington decisions, evidence that could have been discovered but

for lack of due diligence by the defense is not a Brady violation. State v. Lord, 161

Wn.2d 276, 293 (2007); State v. Gregory, 158 Wn.2d 759, 798 (2006); State v. Thomas,

150 Wn.2d 821, 851, 83 P.3d 970 (2004); In re Personal Restraint of Gentry, 137 Wn.2d

378, 396, 972 P.2d 1250 (1999); In re Personal Restraint of Benn, 134 Wn.2d 868, 916,

952 P.2d 116 (1998).

Federal decisions conflict with the State’s argument. According to federal courts,

the State does not avoid its obligation of disclosure based on defendant’s knowledge of

and ability to interview the witness and obtain the undisclosed material. Benn v.

Lambert, 283 F.3d 1040, 1061 (9th Cir. 2002). The duty to disclose applies regardless of

whether defense counsel requested the information. United States v. Bagley, 473 U.S.

37

No. 35087-8-III

In re Personal Restraint of Mulamba

667, 683 (1985); United States v. Agurs, 427 U.S. 97, 106-07, 96 S. Ct. 2392, 49 L. Ed.

2d 342 (1976); Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002). Due process

obligates the prosecution to disclose material exculpatory evidence on its own motion,

without request. Kyles v. Whitley, 514 U.S. 419, 432-34 (1995); United States v. Bagley,

473 U.S. at 682. We must follow the United States Supreme Court decisions, not

Washington Supreme Court decisions, with regard to federal constitutional questions.

Chesapeake & Ohio Railway Co. v. Martin, 283 U.S. 209, 221, 51 S. Ct. 453, 75 L. Ed.

983 (1931). If the defense has no obligation to ask for records before Brady disclosure

arises, defense counsel has no obligation to search for the information on his or her own.

In turn, the records’ availability to both sides lacks importance.

One of the Washington Supreme Court decisions holding that defense counsel

must devote reasonable efforts to discover favorable evidence is In re Personal Restraint

of Benn, 134 Wn.2d 868 (1998). We observe that the Ninth Circuit Court of Appeals

granted Gary Benn a writ of habeas corpus, after the Washington Supreme Court denied

Benn’s personal restraint petition. Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002). The

Ninth Circuit held that the Washington Supreme Court’s ruling entailed an unreasonable

application of United States Supreme Court law.

Denis Mulamba’s personal restraint petition counsel obtained the jail records

through a public disclosure request. Nevertheless, the availability of records through a

public records request does not alleviate or excuse the government of its affirmative duty

38

No. 35087-8-III

In re Personal Restraint of Mulamba

to learn of and disclose any exculpatory or impeachment evidence known to the

prosecution or others working on its behalf. Strickler v. Greene, 527 U.S. 263, 280-81

(1999); In re Personal Restraint of Lui, 188 Wn.2d 525, 567 (2017).

After writing that the jail records were equally available to both sides, the dissent

writes that records were not available to either party. In support of the latter proposition,

the dissent cites 42 U.S.C.A. § 1320d-6, a portion of the Health Insurance Portability and

Accounting Act of 1986 (HIPAA), 42 U.S.C. §§ 1320d to 1320d-8, and RCW 70.02.020.

This contention fails to note that all of the records withheld by the State were jail records,

only some of which were prepared by mental health experts. We consider records

already in the hands of the government to be available to the State. We also deem

records already in the possession of the State not to be equally accessible to the accused

particularly when the accused is unaware of the existence of the records.

If another law compels disclosure of health records, the privacy protections

afforded under the Health Insurance Portability and Accounting Act yield to permit

disclosure of the records. 45 C.F.R. § 164.512(a)(1); Protection & Advocacy System, Inc.

v. Freudenthal, 412 F. Supp. 2d 1211, 1217 (D. Wyo. 2006); Ohio Legal Rights Service

v. Buckeye Ranch, Inc., 365 F. Supp. 2d 889-90 (S.D. Ohio 2005). A constitutional

prescription demanding disclosure of impeaching mental health records of a jail inmate

must then override 42 U.S.C. § 1320d-6. Many of the cases we discuss involve the

withholding of medical or psychiatric records.

39

No. 35087-8-III

In re Personal Restraint of Mulamba

RCW 70.48.100(2) directs a jail to hold in confidence records of a jail inmate.

Just as the due process clause prevails over HIPAA, constitutional dictates demanding

disclosure of records prevail over a Washington statute rendering records confidential.

At the very least, the State should have notified Denis Mulamba of its possession

of the mental health records so that Mulamba could have taken steps to subpoena the

records. In the alternative, the State should have notified the court and counsel of the

existence of the records and permitted the trial court to engage in an in camera review to

determine any privilege. Fuentes v. Griffin, 829 F.3d 233, 241 (2d Cir. 2016), United

States v. Sasso, 59 F.3d 341, 351 (2d Cir. 1995). In Browning v. Trammell, 717 F.3d

1092, 1095 (10th Cir. 2013), the appellate court ruled that, if any difficulty arises because

of an evidentiary privilege, such as the psychotherapist-patient privilege, the trial court

should review the records in camera to determine whether Brady dictates a disclosure.

Materiality

Courts have announced vague and contradictory standards for determining

whether a Brady violation prejudiced the accused. The United States Supreme Court

borrowed the confusing terminology from the law of ineffective assistance of counsel.

Kyles v. Whitley, 514 U.S. 419, 434 (1995); Strickland v. Washington, 466 U.S. 668, 694,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Application of this third prong poses the most

difficult decision for us in resolving Denis Mulamba’s personal restraint petition in part

because of the vague and inconsistent standards of prejudice. The difficulty increases

40

No. 35087-8-III

In re Personal Restraint of Mulamba

when considering we essentially must assume the role of a juror and weigh evidence to

determine the importance of the information found in the jail records when juxtaposed

with the evidence presented by the parties at trial.

In the context of the third Brady prong, “materiality” and “prejudicial” mean the

same. Evidence is not material unless it is prejudicial and not prejudicial unless it is

material. Benn v. Lambert, 283 F.3d 1040, 1053, n.9 (9th Cir. 2002).

Evidence is material and must be disclosed by the State if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433 (1995);

United States v. Bagley, 473 U.S. 667, 679-80 (1985). The result of the proceeding

would not be different unless the accused would have gained an acquittal or at least a

hung juror. Therefore, under this principle of reasonable probability, the law should

require the accused to establish that more likely than not the jury’s consideration of the

withheld Brady material would have led to an acquittal. Nevertheless, the courts do not

require this exacting standard of proof.

Under Brady doctrine, a “reasonable probability” does not require showing by a

preponderance that the jury would have acquitted the accused if the government had

disclosed the suppressed evidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United

States v. Bagley, 473 U.S. at 681-82; State v. Davila, 184 Wn.2d at 73 (2015). Instead,

he or she must show only that the government’s evidentiary suppression “undermines

41

No. 35087-8-III

In re Personal Restraint of Mulamba

confidence” in the outcome of the trial keeping in mind that the jury must find guilt

beyond a reasonable doubt. Wearry v. Cain, ___ U.S. ___, 136 S. Ct. 1002, 1006, 194 L.

Ed. 2d 78 (2016); United State v. Bagley, 473 U.S. at 678. We grant relief when we no

longer hold confidence that the jury would have convicted after hearing the additional

testimony. Wearry v. Cain, 136 S. Ct. at 1007.

Some Washington case law may conflict with federal decisional law with regard to

the standard of materiality. Under United States Supreme Court precedent, the accused

need not establish a likelihood of a different outcome. Kyles v. Whitley, 514 U.S. 419,

434. Instead, the court should vacate the verdict if it lacks confidence in the verdict,

which means the court may reverse even if the court believes the defendant is guilty or

expects the jury to convict again after hearing the withheld evidence. In other words, the

court may grant a new trial if the court deems the suppressed material possibly, rather

than probably, could have changed the verdict. But Washington Supreme Court

decisions stand for the principle that the mere possibility that an item of undisclosed

evidence might have helped the defense or might have affected the outcome of the trial

does not establish “materiality” in the constitutional sense. In re Personal Restraint of

Lui, 188 Wn.2d 525, 566 (2017); State v. Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407

(1986); State v. Knutson, 121 Wn.2d 766, 773, 854 P.2d 617 (1993). One might wonder,

based on Washington precedent, if a “mere possibility” differs from a “possibility,” and

whether the reviewing court should afford relief if there is a “possibility,” but not a “mere

42

No. 35087-8-III

In re Personal Restraint of Mulamba

possibility,” of a different outcome. If so, the court would struggle between what

constitutes a “mere possibility” as opposed to a “possibility.”

Since we are bound by United States Supreme Court precedent, we do not follow

the principle of “mere possibility” announced by the Washington Supreme Court. At

least one federal court based on language from United States Supreme Court decisions

has abandoned the term “reasonable probability” and written that reversal is required

when there is a “reasonable possibility” that the error materially affected the verdict.

United States v. Goldberg, 582 F.2d 483, 489-90 (9th Cir. 1978).

In recognition of the fact that one juror could cause a mistrial or convince all other

jurors to acquit, some courts apply a test of whether there is a reasonable probability that

the withheld evidence would have altered at least one juror’s assessment of the

cooperating witness. Cone v. Bell, 556 U.S. 449, 452, 129 S. Ct. 1769, 173 L. Ed. 2d 701

(2009); United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2011); United States v.

Price, 566 F.3d 900, 914 (9th Cir. 2009). Even under Washington Supreme Court

precedent, the court should ask whether a single juror likely would have had reason to

doubt the State’s evidence if the jury had heard all evidence at trial. In re Stenson, 174

Wn.2d 474, 493 (2012). One might guess as to whether, in this context, “reasonable

probability” means a reasonable possibility of shaken confidence of guilt in one juror.

We review some other principles of Brady materiality. When determining

materiality, the court reviews suppressed evidence collectively, not item by item. Kyles

43

No. 35087-8-III

In re Personal Restraint of Mulamba

v. Whitney, 514 U.S. 419, 436 (1995). Nevertheless, in doing so, the court must assess

the force of the undisclosed evidence item by item in order to evaluate its cumulative

effect. Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. Agurs, 427 U.S. 97,

112 (1976); See State v. Davila, 184 Wn.2d 55, 78-79 (2015). In determining materiality,

courts do not distinguish between exculpatory evidence and impeachment evidence.

United States v. Bagley, 473 U.S. 667, 676 (1985).

A reasonable probability of undermined confidence may be found even when the

remaining evidence would have been sufficient to convict the defendant. Strickler v.

Greene, 527 U.S. 263, 290 (1999); United States v. Kohring, 637 F.3d 895, 902 (9th Cir.

2011). Materiality is not a sufficiency of the evidence test. A defendant need not

disprove that, after discounting the inculpatory evidence in light of the undisclosed

evidence, enough evidence remains to convict. Kyles v. Whitley, 514 U.S. 419, 434-35,

(1995). Instead, the defendant must show the “favorable evidence could reasonably be

taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles v. Whitley, 514 U.S. at 435; Browning v. Trammell, 717 F.3d 1092, 1094-

95 (10th Cir. 2013).

In response to Denis Mulamba’s personal restraint petition, the State contends that

the jail records lack materiality because neither the records nor the information about

Ashley Eli’s conduct would be admissible. The State also contends that the information

44

No. 35087-8-III

In re Personal Restraint of Mulamba

would be cumulative to impeaching evidence that Denis Mulamba actually presented at

trial. We address both admissibility and cumulativeness.

One court disagrees with the principle requiring admissibility and mentioned that

the evidence need not have been independently admissible to have been material.

Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997). The court did not explain further

this statement, but perhaps the court believed that the State should disclose information if

the revealed information could lead to admissible evidence, a standard similar to the

discovery standard in civil suits. We assume, for arguments sake, that the jail records or

information in the records must be admissible to be material.

To be material under Brady, undisclosed information must be admissible. United

States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989); State v. Cardenas, 146 Wn.2d

400 413, 47 P.3d 127 (2002). We already addressed the dissent’s suggestion that the jail

records would not be admissible because of their confidential nature.

The State, while conceding that the jail records might have some relevance,

contends the records would be inadmissible. But the State presents little analysis as to

the records’ admissibility. In forwarding the argument about admissibility, the State

emphasizes the information surrounding Ashley Eli’s mental health. We question, as

does the State, whether some of the evidence concerning Ashley Eli’s mental health

inside the jail, would be admissible at trial.

45

No. 35087-8-III

In re Personal Restraint of Mulamba

Courts will not necessarily allow into evidence nonprofessional opinions or

observations of a witness’s mental health. United States v. Butt, 955 F.2d 77, 82 (1st Cir.

1992). In United States v. Kohring, 637 F.3d 895, 910-11 (9th Cir. 2011), the court

excused the government from releasing a FBI agent’s informal mental health assessment

of the witness. Also, evidence of depression and a suicide attempt are not necessarily

admissible. United States v. Butt, 955 F.2d 77, 82-83.

Courts will, however, allow testimony by qualified mental health professionals. In

United States v. Smith, 316 U.S. App. D.C. 199, 77 F.3d 511 (D.C. Cir. 1996) and United

States v. Pryce, 291 U.S. App. D.C. 84, 938 F.2d 1343 (D.C. Cir. 1991), the federal

courts noted the admissibility and importance to impeachment of a government witness

of psychiatric reports and medical records of the witness that show characteristics of the

inability to testify accurately. In United States v. Sasso, 59 F.3d 341, 347-48 (2d Cir.

1995), the court wrote that evidence of a witness’s psychological history may be

admissible when it goes to her credibility. In assessing the probative value of such

evidence, the court should consider such factors as the nature of the psychological

problem, the temporal recency or remoteness of the history, and whether the witness

suffered from the problem at the time of the events to which she is to testify, so that it

may have affected her ability to perceive or to recall events or to testify accurately.

United States v. Sasso, 59 F.3d at 347-48.

46

No. 35087-8-III

In re Personal Restraint of Mulamba

In Fuentes v. Griffin, 829 F.3d 233 (2d Cir. 2016), the Second Circuit held that the

prosecutor committed a Brady violation when it failed to disclose that the victim

underwent a psychiatric consultation when hospitalized for the rape at issue and the

examination disclosed that she reported depression and substance abuse. The court

observed that United States Supreme Court rulings recognize the application of Brady

principles to a witness’s psychiatric records.

In Browning v. Trammell, 717 F.3d 1092, 1105-06 (10th Cir. 2013), the reviewing

court also ruled that the government violated Brady principles when withholding

psychiatric records of an important witness in a heinous murder. The court emphasized

that the records showed that the witness blurred reality and fantasy. Nevertheless, the

court also deemed records that showed the witness to be combative and assaultive

important.

The jail records documenting Ashley Eli’s behavior and mental health generally

consist of informal notes by Kittitas County jail personnel and contact summaries from

Central Washington Comprehensive Mental Health (CWCMH). Staff members of

CWCMH signed the mental health entity’s notes, but we do not know if these staffers

were physicians or licensed mental health professionals. The jail records may echo the

informal FBI assessment the Kohring court concluded was not relevant to a witness’s

mental instability rather than the formal psychiatric evaluations in other decisions. The

jail records indicate that Ashley Eli suffered from depression, engaged in bizarre

47

No. 35087-8-III

In re Personal Restraint of Mulamba

behavior, and attempted suicide, but the records do not confirm that Eli suffered from a

mental illness that impaired her ability to accurately perceive the events giving rise to the

prosecution of Denis Mulamba or to testify correctly at trial.

We issue no decision as to the admissibility, during retrial, of the notes about Eli’s

mental health. The trial court, on remand, should decide the relevance and admissibility

of evidence surrounding the mental stability of Ashley Eli.

When arguing that the jail records are inadmissible, the State ignores the fact that,

in one of the jail notes, a jail sergeant documented Eli’s history of hiding and lying.

Courts recognize that the defense may introduce evidence of the cooperating witness

lying to authorities. Benn v. Lambert, 283 F.3d 1040, 1054-58 (9th Cir. 2002); State v.

Gregory, 158 Wn.2d 759, 798 (2006). In State v. Gregory, the court held that evidence in

a child dependency file indicating the victim lied about a recent drug relapse in an

interview was material impeachment evidence.

The jail records also show criminal behavior on the part of Eli without any

indication of the State taking steps to prosecute for the conduct. ER 608(b) allows a

party to introduce evidence of specific instances of conduct of a witness, other than

criminal convictions, to attack the witness’s credibility. Alleged misconduct, even when

no charges have been filed, is impeaching evidence under Brady. Benn v. Lambert, 283

F.3d 1040, 1054 (9th Cir. 2002). The dissent fails to recognize the relevance of criminal

behavior inside the jail of a cooperating witness and the State’s failure to prosecute the

48

No. 35087-8-III

In re Personal Restraint of Mulamba

witness for the crimes. Ashley Eli’s lies to jail authorities and the jail’s withholding of

punishment of Eli within weeks of her testimony at trial looms of more importance than a

witness having lied to a teacher forty years earlier about homework, the analogy

presented by the dissent.

The State also contends the jail records would be cumulative to all of the negative

testimony the jury heard regarding Ashley Eli. The only negative testimony identified by

the State is the showing that Eli received a plea deal in exchange for her testifying against

Denis Mulamba. We note, however, that on cross-examination, Eli admitted lying once

to an officer who interviewed her about her children’s injuries.

We face, on the surface, contradictory principles concerning the materiality of

seemingly cumulative impeachment evidence. On the one hand, if suppressed evidence

is “merely cumulative,” the failure to disclose is not a violation. Morris v. Ylst, 447 F.3d

735, 741 (9th Cir. 2006). Undisclosed impeachment evidence is immaterial and

cumulative when the witness is already sufficiently impeached. United States v. Vgeri,

51 F.3d 876, 880 (9th Cir. 1995); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998);

State v. Early, 70 Wn. App. 452, 463, 853 P.2d 964 (1993). On the other hand, the State

cannot satisfy its Brady obligation to disclose exculpatory and impeachment evidence by

making some evidence available and asserting that the rest would be cumulative. Benn v.

Lambert, 283 F.3d 1040, 1057-58 (9th Cir. 2002).

49

No. 35087-8-III

In re Personal Restraint of Mulamba

Before declaring evidence cumulative, the reviewing court should not

automatically conclude that, if the defense impeached the witness at trial, additional

impeaching evidence would be immaterial. Some evidence of bias does not diminish the

value of other impeachment evidence emanating from a different source of bias. Banks v.

Dretke, 540 U.S. 668, 702-03, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004); Napue v.

Illinois, 360 U.S. at 270; Horton v. Mayle, 408 F.3d 570, 579 (9th Cir. 2005). In United

States v. Kohring, 637 F.3d 895, 904 (9th Cir. 2011), the court noted that the cooperating

witness’s additional misconduct undisclosed to the defense would have shed light on the

magnitude of the witness’s incentive to cooperate with authorities and would have

revealed that he had much more at stake than was already known to the jury.

In one decision, the reviewing court noted that the jury heard evidence about a

critical witness incurring a criminal conviction, but still convicted the defendant. Benn v.

Lambert, 283 F.3d 1040 (9th Cir. 2002). In this instance, the impeaching evidence was

insufficient to persuade the jury. Therefore, the suppressed impeachment evidence takes

on greater importance and should not be considered cumulative. Benn v. Lambert, 283

F.3d 1040, 1055. One piece of withheld evidence could be the tipping point for one juror

to find the cooperating witness untruthful and thereby vote to acquit.

When assessing the materiality of withheld Brady discovery, the reviewing court

should keep an awareness of the difficulty of reconstructing, in a post-trial proceeding,

the course that the defense and the trial would have taken had the State disclosed all

50

No. 35087-8-III

In re Personal Restraint of Mulamba

impeachment evidence. United States v. Bagley, 473 U.S. 667, 683 (1985). The private

whys and wherefores of jury deliberations pose an impenetrable barrier to a court’s

ability to know just which piece of information might make, or might have made, a

difference in the trial outcome. United States v. Bagley, 473 U.S. at 693 (Marshall, J.

dissenting). Presumably the United States Supreme Court justices mentioned the

difficulty of assessing the thought processes of twelve jurors individually and collectively

to encourage lower courts to give the defense the benefit of the doubt as to the materiality

of Brady material, not to encourage lower courts to affirm convictions out of an inability

to determine if the jury would have still convicted with the additional evidence.

Washington courts have issued conflicting decisions. In State v. Early, 70 Wn.

App. 452, 463 (1993), this court determined that the State’s failure to disclose

impeaching evidence about a victim was not material when the jury was informed of the

victim’s prior convictions, and two witnesses presented evidence suggesting the witness

was untruthful, and thus the picture of the witness “as an unsavory character with a

motive to lie was amply painted for the jury.”

In contrast, in State v. Gregory, 158 Wn.2d 759 (2006), the high court found the

fact that a witness lied to defense counsel about the last time she used drugs was material,

even though the witness was questioned about five prior theft convictions, giving false

names to police, and her use of drugs on the day of the attack. In Gregory, the new

impeachment evidence was not merely cumulative because it undercut any argument that

51

No. 35087-8-III

In re Personal Restraint of Mulamba

the witness had reformed her old ways, and the State repeatedly emphasized during

closing that the outcome of the prosecution hinged on whom the jury found more

credible.

After reviewing the trial testimony, after analyzing the facts contained in the

withheld Brady material, and after perusing the summations of counsel to the jury, we

conclude that the suppressed jail records are material in that they undermine our

confidence in the jury verdict. The State presented strong evidence of guilt of Denis

Mulamba on all four charges. Nevertheless, Brady evidence need not prove a

defendant’s innocence. Kyles v. Whitley, 514 U.S. 419, 435, 453 (1995); Browning v.

Trammell, 717 F.3d 1092, 1108 (10th Cir. 2013). The additional impeaching evidence,

within the realm of reasonable possibility, if not probability, could have influenced a

juror’s view of the credibility of the State’s primary, if not critical witness, Ashley Eli.

The Kittitas County Corrections Center records demonstrated that Ashley Eli

likely suffered from mental illness in the weeks leading to her testimony and engaged in

dishonest, violent, and destructive behavior. She repeatedly lied to jail officials. Her

behavior amounted to the crimes of assault, escape, resisting restraint, and damaging

government property. She could have been charged with a series of crimes based on her

persistent misbehavior such that Eli was motivated to testify favorably to the State in

addition to the benefits of the plea bargain. But the jury never heard this evidence. The

jail records would assist Denis Mulamba in arguing that the mentally unstable and lying

52

No. 35087-8-III

In re Personal Restraint of Mulamba

Ashley Eli, not him, injured the two children. After all, during the trial, the jury also

heard testimony of spankings and gagging of the children by Eli. The records would also

assist Mulamba in contending that, even if he punished the children on occasion, Eli

meted the extreme punishment that led to the injuries qualifying the conduct as first and

second degree assault of a child.

Ashley Eli’s credibility was important to the outcome of the trial. The defense

argued she was “nuts,” while the State argued “there’s a stream of evidence and truth that

flows through her testimony.” RP at 1084. A factor to consider is the extent to which the

State advocated the truthfulness of the cooperating witness. For example, in Carriger v.

Stewart, 132 F.3d 463, 482 (9th Cir. 1997), the federal Court of Appeals deemed

withheld impeaching evidence material in part because the prosecutor told the jury that

the government’s chief witness “is a lot of things but he is not a liar.”

We note that the State also presented testimony from Jane and Stanley that

generally supported Eli’s version of events and that Denis Mulamba was the one who

hurt them. Nevertheless, Jane gave no descriptions of her injuries. During closing, the

State’s attorney emphasized iron burns on Jane as egregious assaults that could constitute

the crime of conviction for first degree assault, yet no one testified that Mulamba burned

Jane with the iron. Stanley confirmed that Mulamba assaulted him and his sister.

Nevertheless, Eli had influenced the statements of the children before and the record does

53

No. 35087-8-III

In re Personal Restraint of Mulamba

not indicate what contact, if any, Eli had with the children in the weeks preceding the

trial. Eli presented more detailed testimony than the children.

We also note that Denis Mulamba was able to impeach the credibility of Ashley

Eli. He introduced evidence that she received a reduction in her sentence by agreeing to

testify that Mulamba caused the children’s injuries. He introduced evidence about Eli

shaving her head. But the jury did not hear the full extent of the evidence Mulamba

could have used to impeach Eli. The jury did not hear about the extensive violent and

abusive behavior in the jail and her constant hiding objects and lying to jail officers.

Obviously, the jury did not deem the impeaching evidence that Mulamba presented at

trial sufficient to taint Eli’s credibility. We cannot be certain whether additional

impeachment could have influenced a juror’s view of Eli’s testimony.

When addressing Denis Mulamba’s Brady claim, the State of Washington wants

us to employ the burden imposed on the accused when he seeks a new trial based on

newly discovered evidence. Nevertheless, the reasonable probability standard for

obtaining relief from a Brady violation is less onerous than the probably would have

resulted in acquittal standard for newly discovered evidence. United States v. Agurs, 427

U.S. 97, 109-11 (1976). If the standard applied to the usual motion for a new trial based

on newly discovered evidence were the same when the evidence was in the State’s

possession as when it was found in an neutral source, there would be no significance to

54

No. 35087-8-III

In re Personal Restraint of Mulamba

the prosecutor’s obligation to serve the cause of justice. United States v. Agurs, 427 U.S.

97, 111.

Generally, after finding a constitutional violation, a reviewing court engages in a

harmless error analysis. Nevertheless, if the court finds all three factors of the Brady

analysis satisfied, the court does not engage in a separate harmless error analysis. Kyles

v. Whitney, 514 U.S. 419, 435 (1995); State v. Davila, 184 Wn.2d 55, 73 (2015). When

an appellate court determines that exculpatory evidence is “material” under Brady, the

court also determines that, had the defense been able to present the evidence to the jury, a

juror might have had a reasonable doubt as to guilt. United States v. Agurs, 427 U.S. 97,

112-13 (1976). If the omitted evidence creates a reasonable doubt that did not otherwise

exist, constitutional error has been committed. In re Personal Restraint of Stenson, 174

Wn.2d 474, 493-94 (2012).

Denis Mulamba brings his Brady claim in the context of a personal restraint

petition. Most decisions that hold constitutional error occurred when the State withheld

evidence entail a writ of habeas corpus or a personal restraint petition. The courts spend

little time addressing whether the accused meets the additional burden attending to a

collateral attack on a conviction when the court holds the Brady evidence to be material.

On the same basis that we find materiality and prejudice under a Brady analysis, we hold

that Mulamba has shown a constitutional error that resulted in actual and substantial

prejudice.

55

No. 35087-8-III

In re Personal Restraint of Mulamba

Denis Mulamba also contends that the State’s failure to provide jail records denied

him the constitutional right to confront witnesses. He further argues that his trial counsel

performed ineffectively by failing to procure the records before trial. Since we grant him

a new trial on the basis of the due process clause, we do not address the confrontation or

assistance of counsel clauses.

Finally, Denis Mulamba argues that the Brady material would have been relevant

to his sentencing. We need not address this contention.

Jury Unanimity

Although we reverse all four of Denis Mulamba’s convictions, we address his jury

unanimity assignment of error because of the potential for repetition. Mulamba contends

that jury instructions 13 and 17 violated his constitutional right to a unanimous jury

verdict because the instructions did not require the jury to universally agree on one

discrete act that respectively constituted an assault of Jane and of Stanley.

Denis Mulamba never objected, at trial, to the delivery of jury instructions 13 and

17. Nevertheless, any error based on the need for jury unanimity rises to constitutional

magnitude and may be raised for the first time on appeal. State v. Crane, 116 Wn.2d 315,

325, 804 P.2d 10 (1991), abrogated on other grounds by In re Personal Restraint of

Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), which in turn was superseded by statute;

State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). In State v. Kitchen, a

56

No. 35087-8-III

In re Personal Restraint of Mulamba

decision combining three prosecutions, one defendant successfully raised a jury

unanimity error for the first time in a personal restraint petition.

Jury instruction 13 directed the jury to find Denis Mulamba guilty of first degree

assault of a child against Jane if it found beyond a reasonable doubt that, between the

inclusive dates of January 13, 2012 and January 29, 2012, Mulamba:

(a) committed the crime of Assault in First Degree against [Jane]; or

(b) intentionally assaulted [Jane] and recklessly inflicted great bodily

harm on her, or

(c) intentionally assaulted [Jane] and caused substantial bodily harm

and [Mulamba] had [either] previously engaged in a pattern or practice of

assaulting [Jane] which had resulted in bodily harm that was greater than

transient physical pain or minor temporary marks or had caused [Jane]

physical pain or agony equivalent to that produced by torture.

PRP, Exhibit 9 at 36. Note that the jury instruction presented four alternative means by

which the jury could convict Mulamba of the crime: (1) he committed first degree

assault, which constitutes assaulting another and inflicting great bodily harm, while

intending to inflict the great bodily harm, (2) he intentionally assaulted Jane and

recklessly inflicted great bodily injury, (3) he intentionally assaulted Jane, caused her

substantial bodily injury, and previously engaged in a pattern or practice of assault

against Jane, or (4) he intentionally assaulted Jane, caused her substantial bodily injury,

and caused pain equivalent to torture. But Mulamba does not contend on appeal that the

jury needed to be unanimous as to the means by which Mulamba committed first degree

assault of a child. Instead, Mulamba emphasizes that at least the first two alternative

57

No. 35087-8-III

In re Personal Restraint of Mulamba

means required the jury to find one act of assault, and, because the jury heard evidence of

multiple acts, each member of the jury needed to find that he committed the same exact

act. To preserve his right to a unanimous jury, even the third and fourth alternative

means might have required a finding of one particular predicate act of assault before the

jury determined if Mulamba engaged in a pattern of assault or torture.

Jury instruction 17 directed the jury to find Denis Mulamba guilty of second

degree assault of a child against Stanley if it found beyond a reasonable doubt that,

between the inclusive dates of January 13 and 29, 2012, Mulamba:

(a) committed the crime of Assault in the second degree against

[Stanley], or

(b) intentionally assaulted [Stanley] and caused bodily harm that was

greater than transient physical pain or minor temporary marks, and

[Mulamba] had previously engaged in a pattern or practice of assaulting

[Stanley], which had resulted in bodily harm that was greater than transient

physical pain or minor temporary marks or had caused [Stanley] physical

pain or agony equivalent to that produced by torture.

PRP, Exhibit 9 at 40. Jury instruction 17, combined with jury instruction 28, presented

five, rather than four, alternative means by which the jury could convict Mulamba of the

crime of second degree assault: (1) he committed second degree assault by intentionally

assaulting Stanley and recklessly inflicting substantial bodily harm, (2) he committed

second degree assault by assaulting Stanley with a deadly weapon, (3) he committed

second degree assault by knowingly inflicting bodily harm on Stanley and thereby caused

pain equivalent to torture, (4) he intentionally assaulted Stanley and caused bodily harm

58

No. 35087-8-III

In re Personal Restraint of Mulamba

and more than transient physical pain, while having previously engaged in a pattern or

practice of assaulting Stanley, or (5) he intentionally assaulted Stanley and caused bodily

harm and physical pain equivalent to that produced by torture. Again, Mulamba does not

contend on appeal that the jury needed to be unanimous as to the means by which he

committed second degree assault of a child. Instead, Mulamba argues that each juror

needed to agree on the alleged act of assault that the State proved beyond a reasonable

doubt as to the first three, if not all five, alternatives.

RCW 9A.36.120 describes the conduct that constitutes the crime of first degree

assault of a child. Jury instruction 13 followed the language of the statute. The statute

declares, in relevant part:

(1) A person eighteen years of age or older is guilty of the crime of

assault of a child in the first degree if the child is under the age of thirteen

and the person:

(a) Commits the crime of assault in the first degree, as defined in

RCW 9A.36.011, against the child; or

(b) Intentionally assaults the child and either:

(i) Recklessly inflicts great bodily harm; or

(ii) Causes substantial bodily harm, and the person has previously

engaged in a pattern or practice either of (A) assaulting the child which has

resulted in bodily harm that is greater than transient physical pain or minor

temporary marks, or (B) causing the child physical pain or agony that is

equivalent to that produced by torture.

RCW 9A.36.130 similarly provides that a person commits the crime of second

degree assault of a child when:

59

No. 35087-8-III

In re Personal Restraint of Mulamba

(1) A person eighteen years of age or older is guilty of the crime of

assault of a child in the second degree if the child is under the age of

thirteen and the person:

(a) Commits the crime of assault in the second degree, as defined in

RCW 9A.36.021, against a child; or

(b) Intentionally assaults the child and causes bodily harm that is

greater than transient physical pain or minor temporary marks, and the

person has previously engaged in a pattern or practice either of (i)

assaulting the child which has resulted in bodily harm that is greater than

transient pain or minor temporary marks, or (ii) causing the child physical

pain or agony that is equivalent to that produced by torture.

In response to Denis Mulamba’s error assignment, the State of Washington argues

that, in an alternative means case, jury unanimity is not required if sufficient evidence

supports each of the means presented to the jury. In turn, the State contends that, when

viewing the evidence in a light most favorable to the State, any rational trier of fact could

have found the essential elements of the charged crime beyond a reasonable doubt. Our

dissenting brother also analyzes the case as an alternative means case, not a multiple acts

case.

As already noted, Denis Mulamba does not seek reversal based on the failure to

require jury unanimity for an alternative means crime. Mulamba instead relies on jury

unanimity being needed when the State presents evidence of multiple acts, but charges

only one count for those acts. An alternative means case differs from a multiple acts

case. State v. Woodlyn, 188 Wn.2d 157, 162-64, 392 P.3d 1062 (2017); State v. Crane,

116 Wn.2d 315, 325-26 (1991), in turn superseded by statute; State v. Kitchen, 110

Wn.2d 403 (1988); State v. Petrich, 101 Wn.2d 566, 570, 683 P.2d 173 (1984) abrogated

60

No. 35087-8-III

In re Personal Restraint of Mulamba

on other grounds by State v. Kitchen, 110 Wn.2d 403 (1988). We issue no ruling that the

jury must be unanimous on the means by which each crime occurred. The posture of the

prosecution being one entailing alternative means does not preclude the prosecution from

also involving multiple acts and demanding a unanimity jury instruction because of the

multiple acts. Neither the State nor the dissent cites a decision that shields a case from

the need of a unanimity instruction because of multiple acts because the State also

charged the accused with alternative means of a crime. The State’s failure to recognize

that Denis Mulamba grounds his jury unanimity argument on multiple acts impedes its

success.

Under the Washington State Constitution, accused have a right to a unanimous

jury verdict. CONST. art. 1, §§ 21, 22; State v. Ortega-Martinez, 124 Wn.2d 702, 707,

881 P.2d 231 (1994); State v. Petrich, 101 Wn.2d 566, 569 (1984). The State implicates

this right when it charges one count of a crime without identifying one particular act in a

distinct time and place as the charged crime, but argues and presents evidence of many

distinct acts that could constitute the crime. One juror could find that the State did not

prove the existence of one particular act beyond a reasonable doubt and instead find the

State proved the existence of another act beyond a reasonable doubt, while the remaining

jurors could base their vote solely on the existence beyond a reasonable doubt of the one

act the first juror found not to be proved. State v. Kitchen, 110 Wn.2d 403, 411 (1988).

61

No. 35087-8-III

In re Personal Restraint of Mulamba

One could posit unending variables in the respective jurors’, and, in turn, the composite

jury’s, findings as to what act or acts the State proved beyond a reasonable doubt.

Because of the implication on the accused’s constitutional rights, when the

evidence indicates that several distinct criminal acts have been committed, but the

defendant is charged with only one count of criminal conduct, the State must either elect

on which act it relies for conviction or the court must instruct the jury that all twelve

jurors must agree that the State proved the same criminal act beyond a reasonable doubt.

State v. Camarillo, 115 Wn.2d 60, 64, 794 P.2d 850 (1990); State v. Kitchen, 110 Wn.2d

403, 409 (1988); State v. Petrich, 101 Wn.2d 566, 572 (1984); State v. Workman, 66

Wash. 292, 294-95, 119 P. 751 (1911). Washington law labels such a jury instruction as

a unanimity instruction or a Petrich instruction, the latter name arising from a leading

Washington Supreme Court decision. Surprisingly no reported decision records a trial

court directing the jury to answer a special verdict form by identifying the act on which it

unanimously agreed to convict, but instead trusts the jury to follow the unanimity

instruction without naming the act.

As to Jane, the jury heard testimony of many possible assaults committed by Denis

Mulamba. The multifarious actions included unspecified punishment on January 14 in

the garage at Golden Age Afh in Moses Lake, beating her with a belt at a rest stop

between Moses Lake and Ellensburg on January 22, beating her with a belt occasionally

during the week of January 23 in Ellensburg, beating her with an electric cord or coaxial

62

No. 35087-8-III

In re Personal Restraint of Mulamba

cable at unidentified times, requiring wall sits on three unspecified nights in Ellensburg,

beating her when she failed to wall sit for an unspecified period of time in Ellensburg,

spanking her on her bottom with a belt on January 26 in Ellensburg, thrashing her with an

iron’s cord on January 26 in Ellensburg, burning her with an iron on January 26 in

Ellensburg, forcing wall sits on January 29 in Ellensburg, and whipping her with a

coaxial cable on January 29 in Ellensburg.

As to Stanley, the jury also head evidence of many possible assaults meted by

Denis Mulamba. The multiple acts included striking Stanley with a piece of wood and a

metal bar on January 22 in Moses Lake, beating him with a belt at a rest stop between

Moses Lake and Ellensburg on January 22, walloping him with a belt occasionally during

the week of January 23 in Ellensburg, pounding him with an electric cord or coaxial cable

at unidentified times and places, requiring wall sits on three unidentified nights in

Ellensburg, beating him when he failed to wall sit for an unspecified length of time,

repeatedly striking him on the back and legs with a belt at unspecified times and places,

spanking him with the cord of a phone charger on the night of January 25 in Ellensburg,

whipping him with an iron’s cord on January 26 in Ellensburg, and pinching him with

pliers on an unspecified date and place.

In addition to proving that a physical battery occurred for each count of assault of

a child, the State also needed to prove a particular level of injury and pain to the child

victim. The jury could have disagreed as to what acts of Denis Mulamba caused the

63

No. 35087-8-III

In re Personal Restraint of Mulamba

requisite injury. Because of the numerous acts that some jurors could have concluded

beyond a reasonable doubt occurred, while other jurors could have concluded that they

did not occur, we hold that Denis Mulamba was entitled to a unanimity instruction.

Despite arguing that Denis Mulamba’s petition raises the specter of an alternative

means case, the State contends that, because of a pattern or practice of assaults against

both children, the jury need not have been unanimous as to the commission of one

particular assaultive act. Even assuming the pattern or practice exception applies to

multiple acts cases in addition to alternative means prosecutions, we disagree because the

jury could have convicted Denis Mulamba, under alternatives 1 and 2 of each jury

instruction, without finding any pattern or practice.

Our conclusion is bolstered by the closing argument presented to the jury by the

State’s attorney. The prosecuting attorney told the jury that it need not find a pattern or

practice, but could find Denis Mulamba guilty of both first degree assault of a child and

second degree assault of a child based on one predicate act of assault. In turn, State’s

counsel outlined some of those acts. The State’s attorney presented the jury what he

called “options.”

Washington courts recognize that a Petrich unanimity instruction is not required

when the State presents evidence of multiple acts that indicate a “continuing course of

conduct.” State v. Crane, 116 Wn.2d 315, 326 (1991); State v. Handran, 113 Wn.2d 11,

17, 775 P.2d 453 (1989). Nevertheless, the concept of a continuing offense must be

64

No. 35087-8-III

In re Personal Restraint of Mulamba

distinguished from the presence of several distinct acts, each of which could be the basis

a criminal charge. State v. Petrich, 101 Wn.2d at 571. For the conduct to constitute a

continuing course of conduct, the conduct should occur during a “small time frame.”

State v. Crane, 116 Wn.2d at 330. Generally, evidence that the charged conduct occurred

at different times and places tends to show that several distinct acts occurred rather than a

continuing course of conduct. State v. Handran, 113 Wn.2d at 17. Although no court

has limited the breath of time over which a course of conduct may occur, many decisions

based on this rule emphasize that the many acts occurred during the course of hours, not

weeks. State v. Crane, 116 Wn.2d at 330; State v. Monaghan, 166 Wn. App. 521, 537,

270 P.3d 616 (2012). Also the court must consider the possibility of more than one

distinct continuing courses of conduct, circumstances that would also require a jury

unanimity instruction. State v. Kiser, 87 Wn. App. 126, 130, 940 P.2d 308 (1997).

Because of the expanse of time, because of the intervening time between acts of

assault, because of the different location of assaults, and because of the varying nature of

the assaults, we doubt whether all of the alleged acts of Denis Mulamba could be

comprised in one indivisible continuing course of conduct. Nevertheless, we decline to

thoroughly address whether the State presented sufficient evidence of a continuing course

of conduct, since the State, during its summation, told the jury that it could convict on the

basis of one discrete act, rather than a course of conduct. We also note that the State only

65

No. 35087-8-III

In re Personal Restraint of Mulamba

argues a pattern of abuse, not a course of conduct. The two concepts may be the same,

but the State does not argue such.

In its response to Denis Mulamba’s personal restraint petition, the State highlights

two decisions: State v. Nason, 96 Wn. App. 686, 981 P.2d 866 (1999), and State v. Kiser,

87 Wn. App. 126 (1997). In the latter case, the State only charged Scott Kiser with first

degree assault of a child under RCW 9A.36.120(1)(b)(ii)(A), the statutory subsection

involving allegations of a prior pattern or practice of assaults on the victim child. This

court held that, with the limited charge, the jury need not be unanimous as to the principal

assault since the crime is defined by a course of conduct. The court, however, noted that

some prosecutions may require unanimity, such as when the evidence disclosed more

than one distinct episode of assaultive conduct during an extended charging period or the

assaults occurred in different locations.

We note that some decisions permit the State to convict the accused of assault of a

child without the jury being required to unanimously pinpoint one particular assault if the

State relies only on a pattern of abuse and rests its charging decision solely on RCW

9A.36.120(1)(b) or RCW 9A.36.130(1)(b). See State v. Petrich, 101 Wn.2d 566, 572,

683 P.2d 173 (1984); State v. Nason, 96 Wn. App. 686, 696-97 (1999); State v. Kiser, 87

Wn. App. 126, 130 (1997). This valuable rule helps the prosecution to overcome

difficulties in proof resulting from child witnesses who were abused on a regular basis for

a prolonged period of time and can no longer distinguish one specific act from another.

66

No. 35087-8-III

In re Personal Restraint of Mulamba

State v. Craven, 69 Wn. App. 581, 589, n.7, 849 P.2d 681 (1993); State v. Brown, 55 Wn.

App. 738, 746-47, 780 P.2d 880 (1989). Although the rule serves a worthwhile end, we

question the validity of the rule and decisions applying the rule because both RCW

9A.36.120(1)(b) or RCW 9A.36.130(1)(b) require an act of intentional assault in addition

to the pattern or practice of abuse. The Kiser court incorrectly assumed that the crime is

defined only by a course of conduct, not a single act in addition to a course of conduct.

The Nason court noted the need to prove a principal assault, but followed the ruling in

Kiser anyway. A legislative change would be beneficial.

Having ruled that jury instructions 13 and 17 contravened Denis Mulamba’s

constitutional right to a unanimous jury, we must next determine whether the error was

harmless. The State does not contend that, assuming an error, any error was harmless.

This failure impedes its defense of the personal restraint petition.

Under the direct appeal standard of review, the failure to give the Petrich

instruction, when required, is reversible unless the error is harmless beyond a reasonable

doubt. State v. Camarillo, 115 Wn.2d 60, 64 (1990). The court presumes prejudice.

State v. Kitchen, 110 Wn.2d 403, 411 (1988). In multiple acts cases, when the State

failed to elect one discrete act or the jury received no unanimity instruction, we consider

the error harmful if a rational trier of fact could have a reasonable doubt as to whether the

State established one of the incidents beyond a reasonable doubt. State v. Camarillo, 115

Wn.2d at 64; State v. Loehner, 42 Wn. App. 408, 411, 711 P.2d 377 (1985) (Scholfield,

67

No. 35087-8-III

In re Personal Restraint of Mulamba

A.C.J., concurring). Conversely, the error is harmless only if no rational juror could have

a reasonable doubt as to any of the incidents alleged. Pope v. Illinois, 481 U.S. 497, 501-

03 (1987); State v. Kitchen, 110 Wn.2d at 411.

Most trial records do not permit confident inferences about whether the jury found

evidence beyond a reasonable doubt as to each of the multiple acts. State v. Camarillo,

115 Wn.2d at 74 (Utter, J. concurring). Such inferences will be inappropriate in almost

all cases. State v. Camarillo, 115 Wn.2d at 74 (Utter, J. concurring).

In State v. Kitchen, 110 Wn.2d 403 (1988), the high court reversed the conviction

and remanded for a new trial because the jury heard conflicting testimony as to multiple

alleged acts and a rational juror could have entertained reasonable doubt as to whether

one or more of them actually occurred. In State v. Petrich, 101 Wn.2d 566 (1984), the

court overturned the defendant’s conviction because the court could not rule out prejudice

due to the child’s testimony when the State failed to elect one act as the crime. The

victim in Petrich described with detail and specificity some of the acts committed against

her, but other evidence of other acts suffered from confusion as to date and place and

uncertainty regarding the type of sexual contact that took place.

After reviewing all of the possible criminal acts of Denis Mulamba and the

testimony supporting and testimony contravening the existence of each purported

criminal act, we conclude that a rational trier of fact could have a reasonable doubt as to

at least one of the alleged assaults during the seventeen-day charging period.

68

No. 35087-8-III

In re Personal Restraint of Mulamba

We emphasize that Denis Mulamba lacked unlimited access to the children.

Furthermore, Ashley Eli also agreed that she beat the children. The requisite harm that

was an element of each assault could have been inflicted by Eli. The children identified

Denis Mulamba as the primary abuser, but we do not know the access that the mother had

to the children between her arrest and the trial. In the past, the children had been

persuaded by the mother to skew the truth. Denis Mulamba testified and denied the

events. Jane could not recall specific incidents.

Because Denis Mulamba raises the question of jury unanimity for the first time in

his personal restraint petition, he must show that his right to a fair trial was actually and

substantially prejudiced by constitutional error. In re Personal Restraint of Sauve, 103

Wn.2d 322, 325, 692 P.2d 818 (1985); In re Personal Restraint of Haverty, 101 Wn.2d

498, 504, 681 P.2d 835 (1984). Nevertheless, because of the importance of jury

unanimity in Washington’s constitutional constellation, the petitioner who shows that one

juror could have concluded the State did not prove the existence of one of multiple acts,

the petitioner will typically show substantial prejudice. State v. Kitchen, 110 Wn.2d 403,

412-13 (1988).

Denis Mulamba also contends that his counsel on direct appeal acted ineffectively

by failing to argue that Mulamba’s right to jury unanimity was breached. Because we

directly review his jury unanimity instruction contention, we do not address this

additional contention.

69

No. 35087-8-III

In re Personal Restraint of Mulamba

CONCLUSION

We grant Denis Mulamba’s personal restraint petition. We order a retrial on the

two charges of assault of a child and and the two charges of criminal mistreatment.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________

Fearing, J.

I CONCUR:

______________________________

Siddoway, J.

70

No. 35087-8-III

KORSMO, A.C.J. (dissent) — The majority ignores Washington Supreme Court

precedent in favor of outlier cases from the Ninth Circuit, erroneously reaching the

conclusion that the State suppressed alleged impeachment evidence that the petitioner

had minimal difficulty finding after trial. What little of that information that might have

been admissible at retrial was cumulative to that already admitted at trial and does not

undermine confidence in the verdict. For that reason, I dissent. I also disagree with the

court’s erroneous dictum concerning the elements instruction.

Brady Claim

The Brady claim fails both the suppression prong and the materiality prong of

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). For both

reasons, this claim is without merit.

Brady and its progeny established that the government has a duty to disclose

favorable evidence that is material to the guilt or punishment of the accused. In re Pers.

Restraint of Stenson, 174 Wn.2d 474, 486, 276 P.3d 286 (2012). This duty encompasses

both impeachment and exculpatory evidence. Id. at 486-487. A prosecutor has a duty to

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

learn of and disclose any favorable information known by law enforcement.1 Id. at 486.

A petitioner claiming a Brady violation must show that the evidence was favorable to

him, that it was suppressed by the State, and that this suppression prejudiced him. Id. at

486-487.

The PRP claims that the State failed to provide information that Ms. Eli acted out

in jail pending Mr. Mulamba’s trial and her sentencing. He claims that her mental health

problems and her multiple violations of jail rules (including lying to jailers) were

admissible to impeach Ms. Eli.

Suppression Prong. In order to have a Brady violation, the information must be

suppressed by the government. There was no government suppression here.2 The

information, to the extent it was available at all, was equally available to both sides. In

that circumstance, there is no government suppression of Brady material. State v.

Mullen, 171 Wn.2d 881, 895-896, 259 P.3d 158 (2011).

1

This is in contrast to the discovery rules which only require the prosecution to

turn over material in the possession and control of its staff. CrR 4.7(a)(4). Whether jail

personnel are considered law enforcement in this context is an unsettled question, but it is

not one that respondent develops and I will not further address the problem.

2

Apparently recognizing the problem with this argument, Mr. Mulamba also

claimed his trial counsel was ineffective for not obtaining the information. While there

was no error, the failure of the Brady claim on the materiality prong also dooms the

ineffectiveness claim under Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).

2

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

In fact, the records sought were not available to either party. Ms. Eli’s mental

(and physical) health records were protected from disclosure to anyone by the Uniform

Health Care Information Act, ch. 70.02 RCW, and our state analog. 42 U.S.C. § 1320d-

6; RCW 70.02.020. Similarly, her jail records were privileged under RCW 70.48.100.

Kittitas County relied on that latter statute to reject Mulamba’s initial public records act

request for Eli’s jail records. Ex. 29. He then obtained her permission to access all

county jail and state prison records as well as her health records, and the county turned

over what it had. Ex. 30.

Mr. Mulamba had equal access to the jail records because they were controlled by

his co-defendant, Ms. Eli.3 That, in fact, is how he ended up obtaining the information.

There simply was no government suppression of the records.

Materiality Prong. The information Mr. Mulamba obtained also was inadmissible

and/or cumulative. Accordingly, it was not material evidence under Brady.

Evidence is “material” if there is a reasonable probability that, if it had been

disclosed to the defense, the result of the proceeding would have been different. Mullen,

171 Wn.2d at 894. The evidence is considered collectively, not item by item. Id. at 897.

One important aspect of materiality under Brady is the admissibility of the evidence. Id.

3

The State had no ability to spy on Ms. Eli in jail, on its behalf or for Mr. Mulamba,

without running afoul of her Sixth Amendment right to counsel. U.S. v. Henry, 447 U.S.

264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).

3

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

If the evidence is not admissible, it is unlikely that its nondisclosure could affect the

outcome of the proceeding. Id. (quoting State v. Gregory, 158 Wn.2d 759, 797, 147 P.3d

1201 (2006)). When evidence is cumulative of other evidence, it also may be immaterial.

Turner v. United States, 582 U.S. ___, 137 S. Ct. 1885, 1887, 198 L. Ed. 2d 443 (2017);

United States v. Avellino, 136 F.3d 249, 257 (2nd Cir. 1998) (“where the undisclosed

evidence merely furnishes an additional basis on which to challenge a witness whose

credibility has already been shown to be questionable or who is subject to extensive

attack by reason of other evidence, the undisclosed evidence may be cumulative, and

hence not material.”).

Some other principles at play here also are worth mentioning since they would

preclude admission of the evidence that the majority believes is material. Under ER

608(b), specific instances of a witness’s conduct used to attack his credibility may not be

proved by extrinsic evidence. “They may, however, in the discretion of the court, if

probative of truthfulness or untruthfulness, be inquired into on cross examination of the

witness . . . concerning the witness’[s] character for truthfulness or untruthfulness.”

Accord Mullen, 171 Wn.2d at 900.

In addition, the fact that a witness has medical or mental health history that might

be of interest to the opposing side does not mean that it is material evidence that must be

disclosed. State v. Mines, 35 Wn. App. 932, 937-940, 671 P.2d 273 (1983). Not only

4

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

does HIPAA4 apply, but the doctor-patient privilege also applies. RCW 5.60.060(4). In

order to balance these interests, courts may use the in camera procedure of CrR 4.7(h)(6)

to consider whether there is material and disclosable evidence. Mines, 35 Wn. App. at

938-939.

Against these principles, it also is important to view the themes of this case. The

prosecutor referred to Ms. Eli on occasion as “crazy,” quoting Mr. Mulamba’s testimony

(“probably one piece of truth that came out of his mouth”),5 but defense counsel made

Ms. Eli’s “craziness” the central feature of the defense argument. The theme was

mentioned near the start of closing:

the prosecutor starts off by talking how Ashley should still be believed.

Who are we kidding? He is saying she’s nuts. She’s crazy but we should

believe her when she says she can’t remember . . . . Should we believe her

when she had denied and denied ever of abusing her kids but then later said

she did. Just a little – should you believe her? She’s nuts. She’s nuts

today. She was nuts last week and she was nut the week of the 23rd

through the 31st.

Report of Proceedings (RP) at 1099-1100.

Defense counsel repeated that Eli was “crazy” numerous times during his closing

argument, and noted the prosecutor’s argument:

The prosecutor said this case hinge [sic] upon her. And she is crazy and crazy is

not reliable. It’s not believable.

4

Health Insurance Portability and Accountability Act of 1996.

5

Report of Proceedings at 1083.

5

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

RP at 1129. Counsel contrasted his client’s presentation in court with that of Eli—“how

did he present versus crazy Ashley? . . . Did he come across as crazy?” RP at 1130.

Referencing the gruesome injuries depicted in the photographs, counsel noted: “We are

all tired of looking at them but you have to be crazy to do that. He is not.” RP at 1130.

He then summed up his case theory:

Crazy Ashley wanted to grab that dream. She’s got a thing for Dennis and

never let go. She may have known that Dennis wanted her to discipline her

kids more. It is possible but we don’t know for sure [sic] was spinning

through her brain when she went nuts. But it’s possible she’s thinking you

know I’m losing Dennis . . . . But if she does that to please him that does

not make him responsible. He never solicited it. He never encouraged it.

RP at 1131.

Much of Ashley Eli’s difficult life, and nearly every moment she spent with the

two children during the charging period, was put before the jury. Both attorneys

characterized her as “crazy” and the jury had sufficient evidence to draw the same

conclusion. Given the two theories of the case, “crazy” simply was not in question; the

identity of the assailant of the two children was the question. Was it the evil boyfriend or

the crazy mother? If the latter, did she act alone?

The alleged jail misbehavior was far less damaging than the evidence determined

to be cumulative in Avellino. There the government failed to produce evidence that its

chief informant had perjured himself in other trials. 136 F.3d at 253. This evidence was

not material under Brady in light of the fact that the informant could be impeached by the

6

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

terms of his favorable plea agreement with the government and other acknowledged

illegal activities, including nine murders. Id. at 258-259.

Further evidence of craziness in jail was cumulative to an uncontested fact. The

jail records simply did not amount to material evidence under Brady in light of the other

evidence impeaching Eli, including her plea agreement, her abuse of the children, and

evidence of her lifestyle and behavior during her relationship with Mulamba.

In addition, the evidence also was not material because it was not admissible.

While Mr. Mulumba claims that the evidence was necessary to impeach Ms. Eli, none of

the evidence rules permit the supposed impeachment evidence. Evidence that Eli

misbehaved and broke many jail rules does not implicate her honesty, so ER 608 is not

even in play. But even if that misbehavior did implicate her honesty, impeachment by

extrinsic evidence is not permitted. ER 608(b); Mullen, 171 Wn.2d at 900 (could not use

deposition from related civil case to impeach expert witness). Similarly, ER 404 would

not have permitted the testimony. Character of a witness can only be established through

ER 607, 608, or 609. ER 404(a)(3). Evidence of other bad acts cannot be admitted for

the purpose of showing that the actor is a bad person. ER 404(b). Evidence that Ms. Eli

was a bad prisoner simply was not relevant to any issue in the case.

But even if there was an evidence rule that permitted the testimony, the subject of

the proposed impeachment was a collateral matter unrelated to Mulumba’s case. Eli was

called to testify at trial concerning the assaults on her children. Her behavior in jail was

7

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

not an issue. Washington long has excluded evidence that attempts to impeach a witness

on collateral matters. “It is a well recognized and firmly established rule in this

jurisdiction, and elsewhere, that a witness cannot be impeached upon matters collateral to

the principal issues being tried.” State v. Oswalt, 62 Wn.2d 118, 120-121, 381 P.2d 617

(1963) (citing State v. Myers, 47 Wn.2d 840, 290 P.2d 253 (1955); State v. Fairfax, 42

Wn.2d 777, 258 P.2d 1212 (1953); State v. Gilmore, 42 Wn.2d 624, 257 P.2d 215 (1953);

State v. Putzell, 40 Wn.2d 174, 242 P.2d 180 (1952); State v. Kritzer, 21 Wn.2d 710, 152

P.2d 967 (1944); O’Neil v. Crampton, 18 Wn.2d 579, 140 P.2d 308 (1943); Warren v.

Hynes, 4 Wn.2d 128, 102 P.2d 691 (1940); State v. Johnson, 192 Wash. 467, 73 P.2d

1342 (1937); State v. Sandros, 186 Wash. 438, 58 P.2d 362 (1936); State v. Nolon, 129

Wash. 284, 224 P. 932 (1924); State v. Carroll, 119 Wash. 623, 206 P. 563 (1922); State

v. Schuman, 89 Wash. 9, 153 P. 1084 (1915); State v. Stone, 66 Wash. 625, 120 P. 76

(1912); State v. Carpenter, 32 Wash. 254, 73 P. 357 (1903)). “An issue is collateral if it

is not admissible independently of the impeachment purpose.” State v. Fankhouser, 133

Wn. App. 689, 693, 138 P.3d 140 (2006).

The majority also speculates that the fact that a jailer believed Eli was a liar

somehow was relevant. As noted earlier, extrinsic evidence of lying is not admissible in

Washington. ER 608(b). Reputation for dishonesty may be admissible in some

circumstances. ER 608(a). However, I have never heard of a “community” of jailers

being a relevant community for purposes of admitting such evidence, nor has the majority

8

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

suggested that it is. Cf. State v. Land, 121 Wn.2d 494, 497-500, 851 P.2d 678 (1993).

While undoubtedly prosecutors would love to have a rule that allows law enforcement

officers to express their opinion of a defendant’s honesty within the law enforcement (or

jail) community, no rule permits such testimony. Eli’s reputation for honesty among jail

employees was irrelevant.

The cases relied on by the majority are not to the contrary. Primary is Benn v.

Lambert, 283 F.3d 1040 (9th Cir. 2002), a case that is distinguishable on quite a few

different bases. There, despite being under a court order to produce records concerning a

paid informant’s dealings with the police, the records were not produced. The specific

instance cited by the majority as being relevant here involved the informant falsely telling

police he had evidence that Mr. Benn was the Green River killer. Id. at 1056-1057.

Evidence of the informant’s bias against the defendant was, of course, highly relevant

and therefore admissible. ER 401, ER 608(b), ER 613(b); State v. Fisher, 165 Wn.2d

727, 752, 202 P.3d 937 (2009); State v. Robbins, 35 Wn.2d 389, 395, 213 P.2d 310

(1950). Here, Eli’s behavior in jail does not show bias against Mulamba.

Equally unavailing is the majority’s reliance on State v. Gregory, 158 Wn.2d 759,

147 P.3d 1201 (2006). There a witness had been interviewed by defense counsel and

falsely reported prior to trial that she had not used drugs since 1999. Id. at 798.

Government records showed that the witness had relapsed more than a year later and had

to enter into drug treatment. Id. The evidence was admissible to contradict her answer

9

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

during the defense interview. ER 613(b).6 It also served to contradict the State’s

repeated argument that the witness should be believed because she had rehabilitated

herself. 158 Wn.2d at 799-800. Gregory is not relevant to this case. Whether Eli lied to

a jailer about her activities in the jail has no bearing on whether she lied on the stand

about Mulamba’s involvement in the assault on the children. Were the rule otherwise,

any witness who had lied to a teacher about where his or her homework was would be

impeachable for life. Telling an irrelevant lie simply is not a basis for impeachment at

trial.

Although not central to the majority’s analysis, there is a disconnection between

Mulamba’s argument and the allegedly suppressed evidence. The majority reasons that

“Eli was motivated to testify favorably to the State” because she could have been charged

with additional crimes for misbehaving in jail. That argument makes no sense at all. Eli

had already pleaded guilty with the expectation that she would testify concerning

Mulamba’s actions. The deal had been struck prior to her jail misbehavior and the nature

of her anticipated testimony was already known. She received no immunity from future

criminal behavior and could not anticipate lenient treatment on other crimes just because

she still needed to fulfill an existing bargain. Mulamba’s argument has no basis in logic.

6

State v. Swan, 114 Wn.2d 613, 653-654, 790 P.2d 610 (1990), cert. denied, 498

U.S. 1046 (1991); State v. Ciskie, 110 Wn.2d 263, 281, 751 P.2d 1165 (1988); State v.

Renneberg, 83 Wn.2d 735, 738, 522 P.2d 835 (1974); State v. Gefeller, 76 Wn.2d 449,

455, 458 P.2d 17 (1969).

10

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

There was no suppression of evidence. The evidence also was cumulative and

inadmissible. For all of those reasons, the Brady claim fails.

Jury Unanimity

By way of dicta, the majority also claims that a unanimity instruction was

necessary in this case. It was not.

First and second degree child assault are both alternative means crimes. 13A SETH

A. FINE, WASHINGTON PRACTICE: CRIMINAL LAW AND SENTENCING, § 4.10 at 93 (3d ed.

2019). In essence, the crimes can be committed by either (a) assault resulting in severe

injury or (b) by engaging in an assault that is part of a pattern of assault or torture. RCW

9A.36.120(1), .130(1). For simplicity of discussion, I will call them the (a) and (b)

prongs.

The majority correctly notes that jury unanimity is required in all criminal cases

by art. I, § 21, of our constitution. It also correctly notes that in instances of multiple

criminal acts, the jury must be instructed that it needs to be unanimous on the act

involved. The majority also recognizes that the right to jury unanimity extends to

alternative means cases. However, the majority misses a nuance that leads to the

erroneous conclusion that unanimity instructions were needed in this case. Although all

jurors needed to agree that each child assault charge had been committed, they were not

required to be in agreement on the means by which each crime occurred. See State v.

Whitney, 108 Wn.2d 506, 511-512, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d

11

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

816, 822-824, 639 P.2d 1320 (1982). Instead, the right to unanimity is satisfied if there is

sufficient evidence to support each means of the offense or if there is an express verdict

on a specific means should any of the charged means lack sufficient evidence. State v.

Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). If the evidence is insufficient on one

of the means of committing the offense, a general verdict must be reversed and the case

remanded for a new trial. State v. Woodlyn, 188 Wn.2d 157, 165, 392 P.3d 1062 (2017).

Jurors were expressly instructed that they needed to agree on each verdict. Ex. 6

at 74. The sufficiency of the evidence is not at issue in this case. Accordingly, as a

matter of law, jury unanimity was assured. Owens, 180 Wn.2d 90; Whitney, 108 Wn.2d

506; Franco, 96 Wn.2d 816. The trial court did not err in instructing the jury.

The majority, however, wrongly focuses on cases where the only alternative

charged was the (b) prong. In those instances, the charges are treated as multiple acts

cases since the (a) prong alternative is not present and there is no “alternative” to

consider. Further, since the (b) prong consists of an assault plus a pattern, there must be

agreement on the act of assault underlying a (b) prong prosecution. In the case of a single

count charged solely under the (b) prong, unanimity is required because it is a multiple

acts case.

Here, however, this is an alternative means case and no unanimity was required on

any particular means. One or more jurors could find guilt based on prong (a) and others

could find guilt based on prong (b) without agreeing on a specific assaultive act—one

12

No. 35087-8-III

In re Pers. Restraint of Mulamba (Dissent)

believing pliers were used, one a coaxial cable, etc. As long as all 12 believed Mr.

Mulamba committed the crime, no agreement on the method of committing the single

offense was necessary.

On the facts of this case, the majority’s dicta would erroneously convert this

alternative means prosecution into a multiple acts case even though multiple violations of

the statutes were not charged. This effectively strips the jury of the ability to

unanimously agree that Mr. Mulamba committed the charged offenses but differ on the

means of commission and totally frustrates the legislative scheme. Accordingly, I dissent

from the discussion of the alleged instructional error.

There was no Brady violation. The trial court did not err in instructing the jury on

the child assault counts. Accordingly, I respectfully dissent from the majority’s grant of

relief from personal restraint.

_________________________________

Korsmo, ACJ.

13