Patterson v. State

• Citation: 298 P.3d 433,129 Nev. Adv. Op. 17
• Decision Date: 24 July 2013
• Docket Number: No. 54408.,54408.
• Parties: Michael D. PATTERSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

298 P.3d 433
129 Nev. Adv. Op. 17

Michael D. PATTERSON, Appellant,
v.
The STATE of Nevada, Respondent.

No. 54408.

Supreme Court of Nevada.

April 4, 2013.
Rehearing Denied July 24, 2013.

[298 P.3d 435]

Law Office of Lisa Rasmussen, PC, and Lisa A. Rasmussen, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Carrie A. Morton, Deputy District Attorney, Clark County, for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and SAITTA, JJ.

OPINION
By the Court, HARDESTY, J.:

Appellant Michael Patterson was convicted of conspiracy to commit murder, murder with the use of a deadly weapon, and discharge of a firearm into a vehicle. He now appeals arguing, among other things, that his Sixth Amendment right to counsel was violated when he was denied his counsel of choice at his preliminary hearing before the justice court.

We recognize that the preliminary hearing is a “critical” stage of criminal proceedings at which a defendant's Sixth Amendment right to counsel attaches, and we conclude that the justice court's denial of Patterson's request to be represented by retained counsel at the preliminary hearing violated Patterson's qualified right to counsel of his choice. In particular, the justice court failed to conduct a sufficient inquiry into the request. We further conclude, however, that the denial of Patterson's counsel of choice at the preliminary hearing is subject to harmless-error review, and that the error was harmless. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Patterson's conviction stems from the shooting death of Bobby Wilkerson in Las Vegas. Video surveillance footage of a parking lot on the night of Wilkerson's death revealed that a person exited the passenger side of a vehicle, approached the driver's side of Wilkerson's car, and then jumped back into the passenger side of the other vehicle and drove away. Wilkerson then exited his car and fell to the ground. He was later

[298 P.3d 436]

found lying outside of his car with a shotgun wound to his head.

Wilkerson's mother informed the police that her son was planning to meet with Patterson that evening to resolve a dispute concerning a puppy that Patterson sold to Wilkerson. The police located the vehicle pictured in the surveillance footage that left the scene in the apartment complex where Patterson lived. The vehicle belonged to Patterson's roommate, who told the police that she frequently let her boyfriend ¹ and Patterson use it. A search of Patterson's cell phone records revealed that he made frequent calls to Wilkerson's cell phone, but the calls stopped the night of the shooting.

The police then issued an arrest warrant for Patterson, and he was later apprehended in Chicago, Illinois, by FBI Agent Pablo Araya. During his interrogation by Agent Araya, Patterson allegedly confessed to shooting Wilkerson and described where in his apartment he hid the shotgun used in the killing. This interrogation was not recorded, but following the interrogation, the police found the shotgun in Patterson's apartment in the exact location he stated in his alleged confession.² Agent Araya's testimony was the only evidence of the interrogation presented at trial.

Attorney Richard Tannery was appointed to represent Patterson on his criminal charges. Patterson retained another attorney, Garrett Ogata, to represent him the evening prior to his preliminary hearing before the justice court. ³ At the preliminary hearing, Ogata sought substitution as counsel of record for Patterson. Ogata also requested that the justice court continue Patterson's preliminary hearing so that he could complete his preparation for the case. Without asking Patterson any questions concerning Ogata's representation, the justice court denied Ogata's request because Ogata was not prepared to proceed immediately, and Patterson's appointed attorney, Tannery, was present and prepared to represent him. However, the justice court allowed Ogata to sit at counsel's table and provide input to Tannery. Following the preliminary hearing, it appears that Ogata spoke with Tannery several times but Ogata never requested that he be substituted as Patterson's counsel of record for trial. Patterson was ultimately convicted on all charges. This appeal follows.

DISCUSSION

On appeal, we address whether denial of a defendant's request to be represented by retained counsel at the preliminary hearing stage, when the defendant has been represented by appointed counsel up to that point, violates the Sixth Amendment right to counsel of choice, and if so, whether such a violation is subject to harmless-error review. We conclude that there was a Sixth Amendment violation, and reaffirming our prior jurisprudence, we hold that the error is subject to harmless-error review. We further conclude that the State did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), regarding disclosure of evidence.⁴

[298 P.3d 437]

The preliminary hearing is a “critical” stage at which a defendant's Sixth Amendment right to counsel attaches

The Sixth Amendment to the United States Constitution guarantees a criminal defendant's right to counsel, U.S. Const. amend. VI, and that right is protected against state action by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; Gideon v. Wainwright, 372 U.S. 335, 341–45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The United States Supreme Court has “construed the Sixth Amendment guarantee [of counsel] to apply to ‘critical’ stages of the proceedings.” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Pretrial proceedings are often considered to be “critical” stages because “the results might well settle the accused's fate and reduce the trial itself to a mere formality.” Id.; see also Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (stating that the right to counsel “during perhaps the most critical period of the proceedings ... that is to say, from the time of [a criminal defendant's] arraignment until the beginning of [the defendant's] trial ...” is as important “as [it is] at the trial itself”). A pretrial proceeding is “critical” if “potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Wade, 388 U.S. at 227, 87 S.Ct. 1926.

The Supreme Court has recognized that the presence of counsel at a preliminary hearing may avoid prejudicial effect to the defendant's rights because: (1) skilled cross-examination of the State's witnesses may expose fatal flaws in the State's case, give rise to impeachment evidence for the subsequent trial, and preserve testimony from unavailable witnesses for later use at trial; (2) an attorney is better equipped than a lay defendant to “effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial”; and (3) an attorney is in a better position than a lay defendant to make arguments concerning matters like psychiatric evaluations or bail at preliminary hearings. Coleman v. Alabama, 399 U.S. 1, 9–10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (plurality).

In addition, this court has previously recognized that preliminary hearings can give rise to Sixth Amendment concerns. See Messmore v. Fogliani, 82 Nev. 153, 154–55, 156, 413 P.2d 306, 306–07 (1966) (holding that an unrepresented defendant's Sixth Amendment rights to counsel and to confrontation of witnesses were violated when witness testimony taken during the preliminary hearing was introduced into evidence at trial). We have also recognized that a preliminary hearing is an adversarial proceeding at which a defendant's Sixth Amendment right to counsel attaches. See Kaczmarek v. State, 120 Nev. 314, 326, 91 P.3d 16, 25 (2004) (“[T]he Sixth Amendment right to counsel does not even attach in a case until adversarial proceedings have commenced ... ‘ “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” ’ ” (quoting Fellers v. United States, 540 U.S. 519, 523, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004) (quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)))); see also Dewey v. State, 123 Nev. 483, 488, 169 P.3d 1149, 1152 (2007).

[298 P.3d 438]

Because the preliminary hearing is a “critical” stage in the criminal proceeding at which a defendant's Sixth Amendment right to counsel attaches, we must examine the justice court's denial of Patterson's request for counsel of his choice to determine whether error occurred. We review the justice court's denial of Patterson's request to substitute Ogata as counsel for an abuse of discretion. Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004).

The Sixth Amendment right to counsel encompasses two different rights, namely, the right to effective assistance of counsel and the right of a non-indigent defendant to be represented by the counsel of his or her choice. U.S. v. Rivera–Corona, 618 F.3d 976, 979 (9th Cir.2010). The first right (to effective assistance of counsel) is at issue where an indigent criminal defendant seeks to replace court-appointed counsel with new appointed counsel. Id. at 978. Thus, the three-part inquiry that is used to evaluate an attempt to substitute one appointed attorney for another, see Young, 120 Nev. at 968–69, 102 P.3d at 576, “is designed to determine whether [an] attorney-client conflict is such that it impedes the adequate representation that the Sixth Amendment guarantees to all defendants, including those who cannot afford to hire their own attorneys,” Rivera–Corona, 618 F.3d at 979. But the other Sixth Amendment right is at issue where a criminal defendant seeks to replace court-appointed counsel with privately retained counsel, or previously retained counsel with newly retained counsel, or...