Gene Francis STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent, 118 Idaho 932

McDEVITT, Justice. This is the fourth opportunity for this Court to review the murder conviction and imposition of the death penalty of Gene F. Stuart. In 1982, the appellant was found guilty of the first degree murder by torture of three-year-old Robert Miller. This Court first upheld the imposition of the death penalty in State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). Subsequently, the appellant brought his first Petition for Post-Conviction Relief which was dismissed by the trial court. Upon rehearing, this Court upheld the dismissal of the first petition in Stuart v.

State, 118 Idaho 865, 801 P.2d 1216 (1990). The appellant now appeals the trial court’s dismissal of his Second and Subsequent Petition for Post-Conviction Relief (“the second petition”). We reverse and remand with instructions. BACKGROUND The appellant brought his second petition alleging that while incarcerated in the Clearwater County jail awaiting trial, the Sheriff’s Department monitored and recorded his telephone conversations and also his private conversations held at the jail.

The appellant alleged that confidential attorney-client conversations were monitored and that the prosecution used these conversations to gain evidence it otherwise did not have in its possession. The appellant alleged that this monitoring violated his right to effective assistance of counsel and his right to due process under the United States Constitution. Accompanying the petition, the appellant submitted the affidavits of former Clear-water County Sheriff’s Department employees that substantiated his claim that his conversations were monitored.

The affidavits supported his contention that conversations between the appellant and his trial counsel, Robert E. Kinney, and also a Mr. Chris L. Matson, an attorney from Seattle, Washington, were recorded. Subsequently, the appellant filed the affidavit of Chris L. Matson who had previously represented the appellant and who discussed the facts surrounding the charges in this case with the appellant. Mr. Mat-son’s affidavit stated the substance of conversations held with the appellant while incarcerated.

The State does not deny that the Clear-water County Sheriff installed a “security monitoring system” to monitor the appellant’s telephone and personal conversations. It appears that all incoming and outgoing telephone calls of the appellant were in fact monitored and recorded. The sheriff also concealed a microphone in a false thermostat in the attorney-client conference room in order to monitor and record these conversations. The State maintains that this system was necessary in order to maintain security in the jail and that if attorney-client conversations were monitored, it was done inadvertently.

ISSUES The issues involved in this appeal are:

(1) Was the Second Petition for Post-Conviction Relief timely brought?

(2) Was

summary disposition of the petition proper? ARGUMENT Idaho Code § 19-4908 requires that all legal and factual grounds for relief must be raised in the first petition for post-conviction relief. Any grounds for relief not raised are permanently waived if the grounds were known or should have been known at the time of the first petition. Subsequent petitions are allowed if the appellant states a sufficient reason for not asserting the grounds in the earlier petition. Hence, there is no absolute prohibition against successive petitions for relief. Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981).

In his second petition, the appellant states that the facts surrounding the second petition were only discovered “recently.” The accompanying affidavits make it very evident that the facts surrounding the second petition were not known to the appellant until the summer of 1988. It was not until a Mr. Oliver, a former Police Officer for the city of Pierce, informed the appellant’s attorney that he was aware of the recording of the appellant’s, conversations that these facts came to the attention of the appellant and his attorney.

Since the facts were unknown at the time of the first petition, we hold that the second petition is timely and proper. We are next confronted with the critical issue. Was

summary disposition proper in this case?

Summary disposition is proper only where there exists no material issue of fact. I.C. § 19-4906(c); State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983). On appeal, our task is to determine whether the appellant has alleged facts in his petition that if true, would entitle him to relief. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). To determine if the petition alleged sufficient facts to withstand

summary disposition, it is necessary to discuss some preliminary matters. The appellant was confined in the Clear-water County Jail for twenty-four days before an attorney was appointed to represent him. During this twenty-four day period, the appellant contacted Mr. Matson, an attorney in Seattle who had represented him before. Included in these discussions between the appellant and Mr. Matson, were the names and locations of various witnesses who were later called to testify at trial by the State. What was the relationship between Mr. Matson and the appellant? Mr.

Matson had represented the appellant previously, but was not his attorney at trial. Usually the payment of a fee or retainer is evidence of an attorney-client relationship, but it is not necessary. An attorney-client relationship can be established when the attorney is sought for assistance in matters pertinent to his profession. In the Matter of the Adoption of Baby Boy Irons, 235 Kan. 540, 684 P.2d 332 (1984). It is apparent that the appellant consulted Mr. Mat-son for legal advice concerning the charges against him.

We find that there is a triable issue of fact as to whether the conduct of the appellant and Mr. Matson established an attorney-client relationship. What is the effect of monitoring and recording attorney-client conversations? Our Court of Appeals confronted this issue in State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct.App.1982). Martinez involved the monitoring and recording of the defendant’s conversation with an attorney.

The court found that since neither the defendant nor the attorney testified as to the substance of the conversation, the court would not assume that trial tactics or strategy were discussed in this conversation. Since the defendant was unable to prove any substantial prejudice, the court found that a new trial was not warranted. This case differs from Martinez in that the appellant, his trial counsel, and Mr. Matson have described the content of the telephone conversations. We now must decide if these allegations warrant further investigation in the form of an evidentiary hearing.

We begin our analysis by recognizing that an accused has the constitutional right to assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); U.S. Const. amend. VI. This right is fundamental and is not a luxury. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). So fundamental is this right that it has been recognized as the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

This right to effective assistance cannot be disregarded by the states. Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955). We hold that the monitoring and recording of attorney-client conversations may deny a defendant the constitutional right of effective assistance of counsel, Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963); the constitutional right to due process, Coplon v. United States, 191 F.2d 749 (D.D.C.1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). See also, Berger v.

New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Attorney-client conversations are constitutionally protected and cannot be invaded by the State. In re Bull, 123 F.Supp. 389 (D.Nev.1954); State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963). A defendant and his attorney must be afforded the opportunity to discuss freely and confidentially. The affidavits submitted by the State in response to the appellant’s petition were insufficient to rebut the allegations of the appellant. There remain material issues of fact concerning the monitoring and recording of the appellant’s attorney-client conversations.

Therefore, we hold that the appellant raised sufficient facts in his second petition to withstand the motion for

summary disposition. The trial court erred in dismissing his petition by

summary disposition. We remand this case back to the trial court with instructions to hold an evidentiary hearing. We instruct the trial court to determine: (1) whether there was recording of attorney-client conversations on the part of the Sheriff’s Department; and, (2) whether the appellant’s constitutional rights were violated. If such attorney-client conversations are found to have been recorded, the State will be required to show that the evidence at trial had an origin independent of the eavesdropping. Any knowledge wrongfully gained by the government cannot be used against a defendant. Nardone v.

United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). CONCLUSION The trial court’s dismissal of the appellant’s Second and Subsequent Petition for Post-Conviction Relief is reversed and remanded with instructions to hold an evidentiary hearing on the issues raised by the appellant. BAKES, C.J., and BISTLINE, JOHNSON and BOYLE, JJ., concur.