State v. Heng

• Citation: 512 P.3d 942
• Decision Date: 11 July 2022
• Docket Number: 83280-8-I
• Parties: STATE of Washington, Respondent, v. Mitchell HENG, Appellant.
• Court: Court of Appeals of Washington

512 P.3d 942

STATE of Washington, Respondent,

v.Mitchell HENG, Appellant.

No. 83280-8-I

Court of Appeals of Washington, Division 1.

FILED July 11, 2022

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

Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.

PUBLISHED OPINION

Smith, A.C.J.

¶ 1 In January 2017, Mitchell Heng set fire to the Sifton Market, a convenience store located in a commercial building in Vancouver. The fire spread throughout the building and destroyed not only the Sifton Market but also neighboring businesses. The body of Amy Hooser, a Sifton Market employee, was discovered in the rubble.

¶ 2 A jury later convicted Heng of murder in the first degree and arson in the first degree. Heng appeals, arguing that (1) under the rule of lenity, we must assume that the murder conviction was for felony murder predicated on the same arson that was the basis for the arson conviction and (2) the trial court placed Heng in double jeopardy by punishing him for both felony murder predicated on arson and the underlying arson. Because Heng's arson had an effect independent of the murder, we hold that punishing Heng for both crimes did not place him in double jeopardy.

¶ 3 We also hold that Heng's rule-based and constitutional excessive bail challenges are moot, defense counsel's absence from Heng's bail setting does not require reversal, Heng fails to show that counsel was ineffective for not asking the court to revisit bail, and the trial court did not abuse its discretion by admitting a fire marshal's opinion testimony as to the origins of the fire.

¶ 4 Therefore, we affirm.

FACTS

¶ 5 On January 15, 2017, at about 5:35 a.m., firefighters responded to a fire at a commercial building in Vancouver, Washington. The fire started in the Sifton Market, a convenience store in the building, and eventually "burned pretty much the whole building down," destroying not only the Sifton Market but also a barber shop, a pet grooming business, and a pet supply store. Fire crews discovered a person's body in the market's deli area, which was situated in the part of the market farthest away from the main entrance. The body was later identified as Amy Hooser, a Sifton Market employee who had been working the morning of the fire. The Clark County medical examiner concluded that Hooser's cause of death was smoke inhalation and blunt force injuries to the head

.

¶ 6 Surveillance videos recovered from the scene showed Hooser in the Sifton Market beginning at about 5:09 a.m.¹ on the morning of the fire, getting the store ready to open. At about 5:11 a.m., Hooser unlocked the front door. About a minute later, a newspaper delivery person entered through the front door, unloaded a stack of newspapers onto a stand inside the store, and then exited the store. At 5:18 a.m., Hooser walked from the cash register area of the store, near the front door, across the sales floor toward the deli area, which itself was not visible on any surveillance footage. Sifton Market's general manager later testified that although there was a camera in the deli area, it was not functioning.

¶ 7 At 5:20 a.m., a man, later identified as Heng, entered the store through the front door. Heng was wearing a baseball cap, dark pants and shoes, and an unbuttoned flannel shirt with a white T-shirt visible underneath. Heng passed Hooser on the sales floor as she walked from the deli area back toward the front of the store.

¶ 8 At about 5:21 a.m., Heng approached Hooser at the front of the store, and Hooser retrieved an item, which Heng later identified as a key to the bathroom, and handed it to Heng. Hooser then walked across the sales floor into the deli area. This was the last time she was visible on any surveillance footage. A short time later, Heng also walked toward the deli area.

¶ 9 After Heng disappeared from the surveillance footage into the deli area, no one was seen on the video for about four minutes. At about 5:26 a.m., Heng emerged from the deli area onto the sales floor, opened and closed two cooler doors, and continued toward the front register area with a soft drink bottle in hand. He walked into the front office, where the footage showed that his white T-shirt now had a visible stain on the front—a stain that Heng later admitted was blood. Heng took a drink from the soft drink bottle and paced around the front office for a moment before taking a carton of cigarettes from the shelf. He then picked up what appeared to be a lighter from the cash register area before walking back across the sales floor into the deli area.

¶ 10 At about 5:30 a.m., Heng reentered the front office holding what appeared to be coffee filters. He opened a cabinet that contained the store's safe, and according to a detective's later testimony, "look[ed] like he[ ] touched the safe and ... use[d] kind of the coffee filters to touch the safe some more, whether he's trying to access it or wipe it down, I'm not certain." The detective also testified that at this point in the footage from the front office, flickering light could be seen in the bottom right corner, and the video "bec[a]me cloudier until you can't see anything eventually. But, it appears to be smoke filling the room." Heng then picked up a small bin with timecards in it, exited the front office area, and crossed the store again to the deli area. The video cut out a short time later, at around 5:34 a.m. Heng, Hooser, and the newspaper delivery person were the only people visible on the surveillance footage from the morning of the fire.

¶ 11 The State later charged Heng with murder in the first degree, robbery in the first degree, and arson in the first degree. On January 20, 2017, Heng made his preliminary appearance before the trial court. There, Heng confirmed his name and date of birth and requested that counsel be appointed for him. The court then stated,

All right. We're going to appoint [defense counsel]. We put word out to [defense counsel] trying to get him here this morning, but just not enough time. So, he's not here right now. But he'll be – he's already been notified. So he'll be getting in touch with you very shortly.

I'm gonna now hear recommendations about bail and release. I will allow you to address those, but you do not want to talk at all about the alleged incidents that bring you – brings you here today. And then the next time you're in front of the court with [defense counsel] being present, we'll allow, if you're still in custody, bail to be reviewed with the aid of your attorney. Do you understand?

Heng confirmed his understanding, and the prosecutor asked the trial court to set bail at $2 million, arguing, "Based on the nature of the charges obviously, this was a violent and premeditated crime, very heinous in nature." The prosecutor also represented that Heng had prior convictions for assault in the second degree and disorderly conduct, and that Heng's current address could not be verified. The trial court set bail at $2 million, indicating to Heng, "It can definitely be reviewed. Your attorney will have a chance to work things up and have an informed discussion with the court at the next court hearing."

¶ 12 Heng, who remained in custody, appeared for his initial arraignment on February 1, 2017. When the court inquired about the "present bail situation," Heng's counsel responded, "[J]ust to address that. Counsel was not present when I was appointed to represent Mr. Heng and so bail was set outside the presence of counsel. At some point in the future I may address it, but I'm not gonna address it now." The trial court responded, "[I]f you wish to then make sure we do it with some written notice to the State and ... I'll be willing to hear it." Counsel did not subsequently ask the court to revisit bail, and Heng remained in custody pending trial.

¶ 13 A jury trial was held over approximately two weeks in September 2019. Heng testified on his own behalf. Heng's defense theory was that someone else had killed Hooser, and that Heng had set fire to the Sifton Market under duress.

¶ 14 According to Heng, he went to the Sifton Market the morning of the fire to collect money from Hooser, who he claimed sold cocaine for him. Heng testified that when he went into the deli area after using the bathroom, Hooser was there with "Zip," another dealer for whom Hooser sold methamphetamine. Heng testified that when Hooser paid Heng, Zip "got mad that she was giving [Heng] money" because "she obviously was not paying him and she'd owed him a pretty good debt." Heng claimed that Zip then demanded payment from Hooser, grabbed her and hit her several times, and eventually "grabbed [Hooser] by her clothing and hit her against the rack that she was right next to."

¶ 15 According to Heng, Zip threatened Heng that if he "tried to be a hero," Zip would "do the same to [Heng] and [Zip] knew where [Heng] lived." Heng testified that Zip then "just pretty much told [Heng] what to do and [Heng] was scared and ... didn't want to tell [Zip] no." Heng testified that Zip told him to get him cigarettes, which Heng did after getting himself a drink "to kind of calm [him]self down." Heng testified that after he returned to the deli area and gave Zip the cigarettes and a lighter, Zip then told Heng "to go into the safe and grab whatever and to catch the front on fire." Heng testified that he complied because Zip had threatened him, and Heng was scared that Zip would "do something worse" to Heng and his family. He testified that when he returned to the deli area after starting the fire in the front office, he took the time cards with him to show Zip that nobody else was there. Heng testified that as the fire began to spread, he exited the store through the front door and went back to his apartment a couple of blocks away. He testified that on his way home, he discarded his flannel shirt and T-shirt in a neighborhood dumpster and changed into extra clothes h...