Tully v. State

• Decision Date: 13 April 1971
• Docket Number: No. 774--I,774--I
• Citation: 483 P.2d 1268,4 Wn.App. 720
• Parties: James R. TULLY, Appellant, v. STATE of Washington and Jack D. Porter, as Sheriff of King County, Respondents.
• Court: Washington Court of Appeals

Page 720

4 Wn.App. 720

483 P.2d 1268

James R. TULLY, Appellant, v. STATE of Washington and Jack D. Porter, as Sheriff of King County, Respondents.

No. 774--I.

Court of Appeals of Washington, Division 1, Panel One.

April 13, 1971.

Barokas, Martin, Richey & Schaefer, Jack A. Richey, Seattle, court appointed for appellant.

Christopher T. Bayley, King County Pros. Atty., James E. Warme, Deputy Pros. Atty., Seattle, for respondents.

HOROWITZ, Chief Judge.

Petitioner, James R. Tully, appeals from the trial court's denial of his petition for a writ of habeas corpus. The facts are not in dispute.

On December 5, 1967, petitioner was arraigned in the court of the Hon. William Hoar, Judge of the Seattle District Justice Court of Seattle, King County, Washington. A preliminary hearing was scheduled on December 14, 1967. Prior thereto, petitioner, through his father, retained counsel for the petitioner. On December 14, 1967, a preliminary hearing was held in the court of Judge William Hoar, at which time petitioner's attorney was not present. Petitioner requested Judge Hoar to continue the preliminary hearing so that his retained attorney, Mr. Walter Greenaway, could be present to represent him. Mr. Greenaway at the time of the hearing was out of town attending to other legal business and had not been notified of the preliminary hearing date, and hence was not present. There was a notation in the court file that Mr. Greenaway was petitioner's attorney. Nevertheless, Judge Hoar denied petitioner's request. Thereafter three witnesses testified on behalf of the state. Petitioner was not skilled enough to cross-examine any of the witnesses and did not do so. He was not provided with paper or pencil to take notes. No record of the witnesses' testimony was kept of the preliminary hearing, and petitioner could not remember the substance of the testimony given.

In due course, after trial had in the superior court, defendant was convicted of the crime of grand larceny on March 22, 1968, and then sentenced on May 17, 1968. Defendant as petitioner below filed an application for writ of habeas corpus, which came on for hearing on May 27, 1970. It was contended that defendant was denied due process of law because he was in effect denied the assistance of his retained counsel at the preliminary hearing in the justice court when his motion for a continuance was denied. The trial court, after hearing, entered findings and conclusions denying the petition because 'petitioner has failed to show any specific prejudice resulting to him as a result of the failure of his attorney to attend the preliminary hearing * * *' The order denying the petition was entered on June 15, 1970.

Both at the time of the preliminary hearing and at the time of the hearing on the petition for writ of habeas corpus, the Supreme Court of Washington had held that a preliminary hearing is not a critical stage in a criminal proceeding so as to require the appointment of counsel to represent the defendant. State v. Jackson, 66 Wash.2d 24, 400 P.2d 774 (1965); Summers v. Rhay, 67 Wash.2d 898, 410 P.2d 608 (1966). See also State v. Green, 70 Wash.2d 955, 425 P.2d 913 (1967); Garrison v. Rhay, 75 Wash.2d 98, 449 P.2d 92 (1968); State v. Ollison, 68 Wash.2d 65, 411 P.2d 419 (1966); State v. Louie, 68 Wash.2d 304, 413 P.2d 7 (1966); Annot., 5 A.L.R.3d 1269, 1314 (1966).

On June 22, 1970, the United States Supreme Court rendered its decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In that case, the court held that Alabama's dispensable preliminary hearing is a 'critical stage' at which the accused has the right to the appointment of counsel under the 6th and 14th Amendments, but that a conviction may be reinstated if the error is harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), otherwise a new trial is necessary. The reasons given for holding the preliminary hearing to be a critical stage in the criminal proceedings are set out in the court's opinion as follows:

First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case, that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more 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. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.

Coleman v. Alabama, Supra, 399 U.S. at 9, 90 S.Ct. at 2003.

In Washington, as in Alabama, provision is made for preliminary hearing. RCW 10.16. However, a hearing is not mandatory. The prosecutor may file an information in the superior court in order to initiate the prosecution, thereby bypassing a preliminary hearing. State v. Ollison, Supra; State v. Kanistanaux, 68 Wash.2d 652, 414 P.2d 784 (1966). Accordingly, the state concedes that Coleman v. Alabama, Supra, overrules the Washington rule holding that the preliminary hearing is not a critical stage in the trial process so as to require the appointment of counsel for an indigent defendant at such a hearing.

The United States Supreme Court, however, did not decide whether Coleman v. Alabama, Supra, had retroactive effect. We are not here concerned with other problems raised by Coleman v. Alabama, Supra; ¹ and because the instant case involves retained, not appointed, counsel, we do not reach the difficult question, on which the lower federal courts have not altogether agreed, of whether Coleman v. Alabama, Supra, is retroactive. ²

Long prior to the date of the preliminary hearing in the instant case, the United States Supreme Court had recognized the distinction between the right of the person to the services of retained counsel, and the right to the services of appointed counsel. As stated in Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958):

The right of an accused to counsel for his defense, * * * is of significant importance to the preservation of liberty in this country. * * * That right, secured in state prosecutions by the Fourteenth Amendment guaranty of due process, includes not only the right to have an attorney appointed by the State in certain cases, but also the right of an accused to 'a fair opportunity to secure counsel of his own choice.'

During the reign of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), 'the Court made it clear that denying a defendant the assistance of His own lawyer in Any case, at Any stage, on Any issue, constituted a per se violation of 'fundamental fairness." L. Hall, Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 71 (3d ed. 1969). The authors also point out that in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 99 L.Ed. 4 (1954), the court characterized the right of the petitioner 'to be heard through his own counsel' as 'unqualified'; and in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), the court in effect held, in the words of L. Hall, Supra, 'that a state may not deny a criminal defendant the right to have his own counsel guide him on direct examination.' See also Powell v. Alabama, ³ 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), wherein the court stated that the accused is entitled to 'the guiding hand of counsel at every step in the proceedings against him.'

The values protected by the right to the services of retained counsel, though related to, are nevertheless distinguished from and in addition to a person's need of effective counsel. Effective appointed counsel insures the protection of a reliable guilt determining process, and such protection is given even if the designated client may not have confidence in his attorney, or, for that reason, may not want him.

The right to retained counsel, however, is needed to better protect the dignity of the client. Standing accused, the defendant's very honor, personal integrity, and liberty are threatened and by a system of justice whose workings he probably does not understand, but whose importance and power are readily apparent. One of the purposes of the right of appearing by retained counsel of one's choice is to provide the defendant, through choice of the lawyer in whom he has confidence, of the needed psychological assurance necessary to retain the dignity which is his and which a system of civilized justice must respect. Consequently, the defendant is entitled to 'the guiding hand of counsel at every step in the proceedings against him.' Powell v. Alabama, Supra, at 69, 53 S.Ct. at 64. It will be seen, therefore, that the values to be protected do not necessarily depend upon whether appearance by retained counsel is at a critical stage of the criminal proceedings. Even in a non-critical stage of the proceedings, respect for the accused's dignity requires that he be allowed to appear through counsel he retains for that purpose. The stage of the proceedings, however, may determine whether the denial of such a right is harmless.

The view that the right to appear by retained counsel is not limited to a critical stage in the criminal proceedings is supported by State v. Agresta, 5 Conn.Cir. 242, 250 A.2d 346 (1968). There the court upheld the right of a defendant to retained counsel in a preliminary hearing. In that case defendants were convicted in a circuit court of frequenting a gambling house in violation of Connecticut law. The court was informed at a preliminary hearing that defendants had retained new counsel. The court then...