State v. Heng

539 P.3d 13

STATE of Washington, Respondent,

v.Mitchell HENG, Petitioner.

No. 101159-8

Supreme Court of Washington, En Banc.

Argued June 15, 2023

Filed: December 7, 2023

Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St., # 176, Seattle, WA, 98115-6655, for Petitioner.

Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.

Mark Bruns Middaugh, Attorney at Law, 600 University St., Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

La Rond Baker, Jazmyn Clark, American Civil Liberties Union of Washington, P.O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of American Civil Liberties Union of Washington Foundation.

Magda Rona Baker, Washington Defender Association, 810 3rd Ave., Ste. 258, Seattle, WA, 98104-1647, for Amicus Curiae on behalf of Washington Defender Association.

Brian Richard Flaherty, Katherine Elizabeth Hurley, King County Department of Public Defense, 710 2nd Ave., Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of King County Department of Public Defense.

González, C.J.¶1 A person charged with a crime has a right to counsel under our constitutions and under our court rules. Violation of that right is, at least, constitutional error. A violation of that right at critical stages of criminal proceedings is structural error.

¶2 Mitchell Heng was charged with murder, arson, and robbery and was brought before a judge for a preliminary hearing without counsel. At that preliminary hearing, the judge set bail, among other things. Heng argues that counsel should have been present. We agree. But Heng has not shown that the hearing was a critical stage of the prosecution. Because we are persuaded that the violation did not contribute to the verdict, we affirm the courts below.

FACTS

¶3 Amy Hooser was killed in an apparent robbery of her workplace, Sifton Market. Surveillance footage captured images of Heng, in a blood-stained shirt, at the scene with a lighter in his hands. Police arrested Heng shortly afterward.

¶4 The next day, Heng was charged with first degree murder, first degree robbery, and first degree arson. At his initial appearance, counsel was appointed but was not yet present. The State successfully requested that bail be set at $2 million based the nature of the offense, Heng's criminal history, and a purported lack of community ties. Heng's counsel appeared at his next hearing but declined to challenge bail.

¶5 Heng spent the next 31 months in jail awaiting his trial. While in jail, he made many phone calls. Heng was informed that jail phone calls are recorded. During those recorded phone calls, Heng described the events of the night and said someone else had killed Hooser. His descriptions of what happened that night in Sifton Market were not consistent.

¶6 Heng's theory at trial was that a drug dealer, not visible in the surveillance footage, had killed Hooser and had forced Heng to burn down the market. The State impeached Heng using his jail calls and police interviews, highlighting different versions of the story he had told over time. The State also introduced a large amount of direct evidence against Heng, including the video evidence that placed him at the market where the victim was killed, video evidence that suggested he had set the fire that burned down the market, DNA evidence from the victim in Heng's car, and more. A jury convicted Heng of first degree murder and first degree arson, and he was sentenced to 374 months in prison.

¶7 Heng appealed arguing, among other things, that his right to counsel had been violated at a critical stage of the prosecution. The Court of Appeals held that the preliminary hearing was not a critical stage and that any violation of the right to counsel was harmless beyond a reasonable doubt. State v. Heng , 22 Wash. App. 2d 717, 742, 512 P.3d 942 (2022), review granted in part , 200 Wash.2d 1025, 523 P.3d 1175 (2023).

¶8 We granted review on issues related to the bail hearing¹ and set it as a companion to State v. Charlton , which also involves deprivation of counsel at preliminary hearings. 23 Wash. App. 2d 150, 159, 515 P.3d 537 (2022), review granted , 200 Wash.2d 1025, 523 P.3d 1182 (2023).

ANALYSIS

I. The Right to Counsel

¶9 The Sixth Amendment to the federal constitution and article I, section 22 of our state constitution both guarantee criminal defendants the right to counsel. State v. Heddrick , 166 Wash.2d 898, 909-10, 215 P.3d 201 (2009) (citing U.S. CONST. amend. VI ; WASH. CONST. art. 1, § 22 ; State v. Everybodytalksabout , 161 Wash.2d 702, 708, 166 P.3d 693 (2007) ); see also Powell v. Alabama , 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932) (holding that a defendant has the right to counsel because even if "not guilty, he faces the danger of conviction because he does not know how to establish his innocence"). The right to counsel attaches under the Sixth Amendment at a defendant's "first appearance before a judicial officer" where "a defendant is told of the formal accusation against him and restrictions are imposed on his liberty." Rothgery v. Gillespie County , 554 U.S. 191, 194, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008) (citing Brewer v. Williams , 430 U.S. 387, 398-99, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) ).

¶10 Our court rules also guarantee the right to counsel. CrR 3.1 ; State v. Templeton , 148 Wash.2d 193, 212, 59 P.3d 632 (2002) ("Promulgation of state court rules creates procedural rights." (citing In re Welfare of Messmer , 52 Wash.2d 510, 512, 326 P.2d 1004 (1958) )). Under CrR 3.1,"[t]he right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest." CrR 3.1(b)(1). This rule-based right extends to "all criminal proceedings" and requires counsel at "every stage of the proceeding." CrR 3.1(a), (b)(2)(A) ; accord State v. Copeland , 130 Wash.2d 244, 282, 922 P.2d 1304 (1996) ; see also CrR 3.2.1(e)(1) (requiring courts to provide lawyers at preliminary appearances after a warrantless arrest).

¶11 Our rule also provides that counsel "shall" be provided "as soon as feasible after the defendant has been arrested, appears before a committing magistrate, or is formally charged," providing broader protections than our constitutions. CrR 3.1(b)(1) ; cf. Templeton , 148 Wash.2d at 210-12, 59 P.3d 632 (quoting CrRLJ 3.1(b)(1) ), at 218-19, 59 P.3d 632 (citing Heinemann v. Whitman County , 105 Wash.2d 796, 802, 718 P.2d 789 (1986) ).²

¶12 Importantly, technological progress has made it increasingly feasible to have counsel present at a defendant's first judicial appearance, even in small counties. See, e.g. , Ord. Regarding Ct. Operations after Oct. 31, 2022, No. 25700-B-697, at 4 (Wash. Oct. 27, 2022) ("Courts should continue to allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever appropriate."). Because it is increasingly feasible, courts are required to provide counsel at earlier stages than was previously possible. See Khandelwal v. Seattle Mun. Ct. , 6 Wash. App. 2d 323, 338, 431 P.3d 506 (2018) (noting that the word "shall" in our right to counsel rules mandates strict compliance with the rule). At oral argument, counsel for the State acknowledged that providing counsel at preliminary hearings would place no extra burden on the State because

following COVID, we've utilized video proceedings to always have indigent defense counsel present via video so that if other attorneys who are actually appointed to the case are not available to be present to represent their client at these preliminary appearances, the ... on duty indigent defense attorney who's appearing via video can step in just for that proceeding. So, that would have no impact on our county at least and would be ... we would brook no issue with that ... decision anyway.

Wash. Sup. Ct. oral argument, State v. Heng , No. 101159-8 (June 15, 2023), at 22 min., 12 sec., video recording by TVW, Washington State's Public Affairs Network, https://tvw.org/video/washington-state-supreme-court-2023061146/.

¶13 Simply put, defendants must have counsel present, at least virtually, at their first preliminary appearance before a judge unless it is simply not feasible for some extraordinary reason.³ Administrative convenience, lack of funds, or shortage of defense counsel are not adequate reasons to deprive a person accused of a crime of counsel. See Wilbur v. City of Mount Vernon , 989 F. Supp. 2d 1122, 1137 (W.D. Wash. 2013) ("[S]tate courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer."); cf. In re Det. of D.W. , 181 Wash.2d 201, 208, 332 P.3d 423 (2014) (holding that lack of funds cannot justify the State's failure to provide required services (quoting Or. Advoc. Ctr. v. Mink , 322 F.3d 1101, 1121 (9th Cir. 2003) ).

¶14 A person facing criminal charges needs counsel at their first preliminary appearance to protect their constitutional rights while the court decides bail and other important questions. See Coleman v. Alabama , 399 U.S. 1, 9, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970) (plurality portion) (highlighting the importance of counsel to argue for procedural safeguards like "early psychiatric examination or bail"). Bail hearings "are frequently hotly contested and require a court's careful consideration of a host of facts about the defendant and the crimes charged." United States v. Abuhamra , 389 F.3d 309, 323 (2d Cir. 2004). Our own court rules on pretrial release and bail require exactly that kind of fact-intensive inquiry before the State can restrain an accused's liberty. CrR 3.2 (requiring courts to presume release on personal recognizance in noncapital cases and...